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Results of the Summer 1993 FAX POLL

The Arkansas Lawyer

We received 58 responses 10 our FAX POLL from the Summer 1993 issue. With the readership currently numbering approximately 4,200, this is obviously not an accurate "surveY' of the readership and is no/ intended to represent such. The FAX Poll exists to provide a formal for readers 10 voice their opinions and 10 open discussion on iSSUBS which may be explored further in articles Df essays in the magazine. If any reader would like to comment on the issues discussed here in the form of an essay Of article, please send 10 Editor, Arkansas Lawyer Magazine, 400 W. Markham, Lin/e Rock,

AR 72201. Below are Ihe resulls, Ilgured by percentage. Some

FAX POLL

percentages will not add 10 100% as more than one anSWfJf or no anSWBr was given.

Should Uncle Sam be Watching?

1. Have you ever had a sexual relationship with a client while you were representing them?

This issue's FAX POLL deals with the issues being discussed in Ihe Cover Arlieles the government's involvement in societal problems. As some 01 the questions are quite involved, we're sure some of the answers will beas well. Please leel Iree to attach additional pages 10 your FAX POLL lor commentary.

20.6% yes 68.9% no 1% none of your business but I'll answer the rest of the poll.

2. Have you ever had a sexual relationship with a former client?

24.1 % yes

68.9% no

3. Do you think it is acceptable to have sex with a current client?

13.7% yes 75.8% no One interesting answer to this question was "That would depend totally on what she looked like.· I'm assuming this was a man who was glad the poll is anonymous.

4. Do you think it is acceptable to have sex with aformer client?

65.5% yes

24.1 % no

have a sexual relationship with someone who has subsequently become a client?

44.8% no

6. Do you think the lawyer should be required to inform the client in writing of how a sexual relationship between him/herself and the client could affect representation? (Oregon's rule)

41.3% yes

assure: __ Agree

5. Do you think there should be a rule against lawyers CONTINUING to

41.3% yes

1. The federal government is often criticized for becoming to involved in private business. Do you agree that such involvement is necessary to

44.8% no

7. Do you think a rule should be made simply stating that lawyers are not allowed to require sex as a condition of representation? (California's

rule)

A. The rights of the physically challenged with adoption of acts like the Americans With Disabilities Act? __ Agree

44.8%

__ Disagree

B. The rights of women or minorities to equal opportunity in the workplace with acts like Title VIII? __ Agree

41.3% yes

4. One step suggested for dealing with juvenile crime is the adoption of juvenile curfew laws. These and similar laws are of dubious constitutionality although the U. S. Supreme Court has never ruled on the issue. Many municipal governing bodies take the position that the curfew should be adopted regardless of recent successful constitutional challenges.

In other words, pass the law and sue us. Do you agree that this is a responsible way to approach legislation?

__ Disagree

__ Disagree

5. The attitude expressed above was, in part, the attitude that prevailed during adoption of New Deal legislation in the late 1930s. This legislation is believed by some to be the beginning of government regulation of private business. Many still believe that this is an appropriate approach to legislation.

Do you agree or disagree with this approach to governance?

no

__ Agree

__ Disagree

8. Do you think a rule should be made simply stating that lawyers are not allowed to continue representing a client if the sexual relationship causes the lawyer to perform legal services incompetently? (California)

51.7% yes

37.9% no

9. Do you think the Arkansas Supreme Court should amend the rules of professional conduct to include a rule against such relationships?

48.2% yes

2. Do you believe that local, state or federal government should be involved in the adoption of laws to penalize "hate' crimes more severely than other types of offenses? __ Agree

41.3% no

__ Disagree

Are there any topics you can suggest for future FAX POLLS?

10. Do you think the American Bar Association should make a rule against such relationships?

44.8% yes 44.8% no One poll answered yes' to this one continuing with, the ABA has a welJ~earned reputation for stupidity.• Comments on the poll included: 'Come on folks, let's stay out of each other's bedrooms.· 'Whatever happened to 'no sex before marriage?'

This entire fax poll is offensive to people who live by the Bible.•

3. Do you agree that there is a critical need for new laws and regulations to curb municipal crime? __ Disagree

FAX this completed sheet to:

The Arkansas Lawyer at 375·4901 or mail to 400 W. Markham, Little Rock, Arkansas 72201

LETTER

FROM

THE

EDITOR

Looking at the Big Picture

By Paige Markman Every once in a while, we do an issue that doesn't really deal with concrete subjects -- not much in the way of technical articles, instead dealing with general legal or even philosophical concepts. This is one of those issues. The articles were planned by Tom Carpenter (a constant source of wit, wisdom and help to me) and sought out from those we felt would aid us in the quest to make each reader sit back and think about the world and their part in it for a moment. Each article is gripping, entertaining and thought-provoking. Please, don't read them when you have ten minutes between depositions or right before you rush off to court. Read the articles when you have some time to reflect -- I know, time is a precious commodity for lawyers, but I think you'll find the articles wOrth the investment.

While we worked on the issue, I found myself pondering the questions we were asking. Should the government be involved in the problems we face today? Can legislation solve the problems? I started looking at the big picture - not a hard thing to do if you watch the nightly news a couple of times a week and at least glance at the front page of the newspaper daily. Having a sister in the Pulaski County Prosecutor's Office also tends to give one a guod dose 01 reality along with some occasional entertainment. I've always found it overwhelming to look at the big picture and it has been no different this time. When I see the drug dealing, the homeless population, the needless war and famine, I wonder -- how can I make a difference? Someone has got to do something -- NOT CONTRIBUTING TO A SOLUTION IS THE SAME AS CONTRIBUTING TO THE FAILURE OF OUR SOCIETY. [think we all ask ourselves these questions frequently when we see the children of Somalia, the homeless man who wanders up and down Cantrell Road, the three children who were brutally murdered in West Memphis or the three children that did the murdering. But is it fair to expect ourselves to try and affect the big picture in a national or international way? We can't all be the President of the United States or a member of the U. S. Supreme Court. We can't all be involved in the day-to-day policy making decisions that shape our world. So where do we contribute? How do we make a d illerence that will mean something?

I used to think that 1 was very conservative and anti-government involvement; 1 even voted for Reagan. As I see more of the world, though, 1 arrive at a universal viewpoint. One of the things that frequently strikes me is that WE MUST ALL BE RESPONSIBLE FOR OUR OWN ACTIONS' If we could just do that, wouldn't some of these problems go away naturally? If we teach our children that drugs are not just wrong but contribute to all of the ills of society, if we nurture and love them and help them when they make mistakes, wouldn't the drug dealers close up shop? If we try to be culturally sensitive ourselves and teach our children to do the same - I don't just mean never using slang terms to describe someone different from us, but really choosing and teaching a belief in equality, couldn't hate crimes be abolished? If each of us could provide for ourselves and our children a loving, supportive home, wouldn't the homeless problem be less severe? AND, if we support the government and courts being tougher on criminals, drug dealers and murderers -wouldn't our children be safe?

I honestly don't know the answers to these questions. They frequently haunt me as I look into the big innocent eyes of my daughter and wonder, "How am I going to explain this mess we're in? Am [ going to be able to say I've contributed to the solution or to the failure?" Looking at the big picture is overwhelming, but it does provide one a much needed reality check and the desire to change and improve this world. I hope this issue does that for all of you.

4 ARKANSAS LAWYER

AUTUMN 1993

VOLUME 27, NUMBER 4 PUBLISHER

Arkansas Bar Association EDITOR & ART DIREcrOR Paig~ Markman Dirutor ofPRJMark~ng

·\RK-\t\SAS BAR ASSOCIATIO]\'

100 \X: \Iarkham Lml< Rock. Arkama; -220 I OFFICERS President

E. Lamar Pettus President-Elrct Rob<rt L Jon.. III

In This Issue:

4

letter from the Editor

7 8

letters to the Editor

lmmcd.iate Pase President John P. Gill S«rcca:y -Treasurer

Jeanette 1. Hamilton

By Paige Markman

The Developing Law:

By Walter G. Wright, Jr. The Seasons They are a Changin' An Update on Management of Environmental Issues Related to Commercial Transactions

Executive Council Chair

Russdl M«ks III Execucive: Dirceror William A. Martin Associate Executive Director judith Gray

16

Disciplinary Actions

30

Vincent W. Foster, Jr. Some Recollections

By Phillip Carroll

---

EXECUTIVE COUNCIL Joe Benson William Clay Brazil

------

34

Thomas M. Carpenter Michael H. Crawford

Boyce R. Davis

COVER ARTICLES: Are there some probles that legislation can't solve?

A primer on hate crime legislation

By Thomas M. Carpenter

Wendtll L. Griffen David K. Harp Dave W. Harrod Charles L Harwell Don Hollingswonh Henry C. Kinslow Robert Lynn Lowery jerry C. Post Donald P. Raney Teresa M. Wineland

Which is worse: Stairs into public buildings or lederallaws thatlorce sensitivity?

Am I a partner because I'm good or because ... ? By JoAnn C. Maxey Military Personnel Policy: Who's in Charge?

The courts, congress or the commander-in-chief?

By William A. Woodruff

EX-OFFICIO E. Lamar Pettus Rob<rt L Jones 1II john P. Gill Jeanette L Hamilton Russell Mttks III

Brian Ratcliff The: Arkansu Lawyer (USPS 546·040) is published quarterly by the Arkansas Bar As8ociation. Seamd class postage paid at Uttle Rock. Arl<ansas. POSTMASnI< send address c.hanges to The Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201.

Subscription price 10 non-members of the Arkansas Bar Association 515.00 ~ year and to members $10.00 per year included in annual dues.

Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer.

Contributions to The Arkansas lawyer are welcome and should be sent in two copies to EDITOR.. Arkansas Lawyer, 400 West Markham, Little Rock, Arkansas 72201. All inquiries regarding advertising should be sent to The A.rtc.ansM Lawy« at the above address.

By Philip E. Kaplan

52 54 55 56 58 60

Important Member Update: Comprehensive IOlTA law Practice Management

By Jerry Schwartz

law, Literature & laughter

By Victor A. Fleming

ClE Division Report

By Deb Garrison

President's Message

By Lamar Pettus

------

In Memoriam

61

Young lawyers' Section Column

62 65

law School News Executive Director's Report

By Brian Ratcliff

By William A. Martin

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LETTERS Dear Editor, The article in The Arkansas Lawyer about Lamar and Donna [Pettus] was excellent. You have established a tradition for wellpresented and authored articles about Bar Presidents. From my experience, this is very helpful in generating support for the President within the Association, but it is also a beneficial introduction to other bar leaders throughout the country.

Thank you for your talented journalism.

Jim McKenzie Prescott

TO

THE

EDITOR

It is an excellent edition. Keep up the good work.

Oscar Fendler Blytheville

As always, letters to the editor are we/come. COlltettt does 1I0t lIecessarily luwe to be related to the magazille. The Arka"sas Lawyer is meallt to be a forum for members of the Arkallsas Bar Associatioll to discuss issues of collcern to the lawyers of Arkallsas.

All letters which are siglled are accepted for publicatioll ill this columll.

Please selld correspolldellce to:

Editor The Arka"sas Lawyer 400 W. Markham Little Rock, Arka"sas 72201 or call

Dear Editor, I have just finished reading Volume 27, No.3, of The Arkansas Lawyer, and congratulate you on a job well done.

375-4605

(800) 482-9406

PUBLIC INFORMATION COMMIITEE UPDATE! The Public Information Committee has been awarded a 20,000 grant to produce four more "Legally Speaking" television shows like the one shown on AETN last spring.

The committee is also putting together a IIFocus Group" program to study the perception problem with the legal profession in the state of Arkansas.

If you have suggestions for topics or comments on either of these projects, please send them to: Stacy Allison DeWitt, Chair Public Information Committee 400 W. Markham Li tUe Rock, Arkansas 72201

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Unimproved properties are also affected. Consider a buyer that fails to discover prior to purchase that certain areas of the acquired property are subject to the federal Oean Water Act 404 "wetland" regulatory program. l The additional permitting and/or mitigation costs may affect the viability of the proposed development or use of the property.

This stigmatization of commercial or industrial properties is unfortunate. The primary assets of many businesses are their real properties and facilities. A property or facility perceived to be among a class that involves environmental issues may be more difficult to sell. lease, or mortgage. The potential financial effect on some companies can be disastrous.

A company seeking funds from a financial institution that offers two multi-story office buildings as collateral is a prime example. If the buildings are two of the tens of thousands that contain some form of asbestos, the financial institution may lower its estimation of the value of this potential collateral because of a concern that occupancy and/or rental rates will be lower than the market average. Whether or not this or other environmental concerns are grounded in reality, the perception of the financial institution, a buyer, or a lessee will ultimately determine the marketability and value of the property or facility.

The negative impact of environmental issues does not fall solely upon the individual company or property owner. Our cities and towns are adversely affected by properties or facilities that lie idle because of environmental concerns. Sites available for redevelopment are often bypassed, resulting in an eroding property tax base in older areas of some communities.

Our communities and clients will benefit if these properties can be kept in commerce and their values maintained.

Consequently, the attorney should endeavor to utilize whatever strategies or techniques are available to successfully resolve relevant environmental issues in a given commercial transaction. Some of the available tools such as contractual provisions and environmental assessments ("EAs") are relatively well known. Other governmental policies and programs such as the Arkansas Petroleum Storage Tank Trust Fund or the Environmental Protection Agency ("EPA") covenant not to sue are more obscure.

This article will attempt to review these and other strategies and tcchniques for the successful resolution of environmental issues in various commercial transactions. The viewpoints of the buyer, seller, lessor, and lessee wi1l each be considered.

Please note that since most attorneys are already familiar with contractual provisions (i.e., warranties/indemnities) and EAs, the discussion will focus on some of the more recent developments relating to those tools. This article is not intended to be a comprehensive treatment of the subject. However, it is hoped that an understanding of a few of the tools available to resolve environmental issues in a given transaction will help maintain values and keep these properties in commerce.

II. GE ERAL EFFFCT OF ENVIRO MENTAL LIABILITY STATUTORY PROVISIO SON COMMERCIAL TRANSACTIO S. The federal and state environmental statutes typically impose certain liabilities or responsibilities upon broadly defined catt:gurie, of responsible parties without regard to fault.

The nomenclature and language used to identify and delineate the responsible parties varies. The federal Comprehensive Environmental Response Compensation and Liability Act (CERCLA")2 and the Resource Conservation and Recovery Act (tF RCRA")3 use the terms "owner" and "operator" to designate those parties that are encompassed by their liability and regulatory provisions. The broadly defined term "person" is used by the FL'<.Ieral Water Pollution Control Act (tFFWPCA"}4

10

ARKANSAS LAWYER

AUTUMN 1993

and the Arkansas WaLer and Air Pollution Control Act ("AWAPCA")5 to define who is subject to each statute's requirements. The courts have consistently interpreted these and the related definitions found in similar statutes very broadly.

The effect of these broad applicability definitions in commercial transactions is obvious. A purchaser of a facility or property can in many instances become responsible for preexisting contamination or regulatory compliance upon acquisition. Contamination remediation and regulatory compliance expenditures will of course affect the value of a given property or facility. Besides requiring the expenditures of monies, both contamination remediation and regulatory compliance requirements can affect the ability of the purchaser to use the property or facility for his or her intended purpose.

An acquired truck terminal containing areas of contamination that require unexpected expenditures for remediation or that constrain operations for an extended period of time is a possible example. Similarly, a purchaser acquiring a manufacturing facility who proposes to discharge a pollutant pursuant to an FWPCA ational Pollution Discha.rge Elimination System (" PDES") permit into an adjacent water body would need to calculate the cost of compliance with treatment requirements. The cost would vary depending upon the type of pollutant and the water quality standards set by the state for that particular Jake, stream, or river.

This projected cost would obviously affect the viability of the purchaser's proposed use of this facility.

A seller has different but equally serious concerns. Statutes such as CERCLA or the Arkansas Remedial Action Trust Fund Act" sometimes place continuing responsibility for hazardous substance contamination on a former owner even though title to the property or facility is transferred. Therefore, the federal or Arkansas environmental enforcement agencies may be able to force the seller to address hazardous substance contamination if the purchaser is unable.

Further, this continuing liability or responsibility could be exacerbated if an irresponsible purchaser mishandles the problem. Regardless, even without federal ur state agency enforcement, a disgruntled purchaser may attempt to recover the cost of hazardous substance remediation from the seller through a statutory or common contribution law action.

Lessees often face risks similar to purchasers. Their acquisition of a leasehold may place them in one of the responsible party categories found under the various environmental statutes. Consequently, lessees in some instances could be forced to bear certain remediation or reg'ulatory compliance costs for problems they did not create. This is especially true in the case of CERCLA where a few courts have deemed lessees responsible parties under that statute's broad liability scheme?

Since the lessor is obviously the owner of a given property or facility, he or she could be forced to expend funds to remediate hazardous ubstances or correct regulatory noncompliance caused by the lessee. The fact that the

"The negative impact of environmental issues does not fall solely upon the individual company or property owner. "

responsibility for such matters has been delegated in the lease to the lessee is of course inapplicable to federal or state environmental enforcement agency actions. This is clearly a concern in industries whose participants engage in multiple facility or equipment leases.

Consider for example the marketing segment of the petroleum industry. Underground storage tanks ("USTs") can be a focal point in an arrangement in which the lessor/motor fuel supplier, provides motor fuel and a retail facility to a retailer. USTs are usually a part of the equipment supplied along with the retail facility. The RCRA Subtitle 18 and Arkansas usT9 programs provide that both the owner and operator of the USTs are responsible for compliance. Even if responsibility for response to leakage and spillage from the USf at the leased premises is delegated to the lessee by the lease, the lessor also remains as a potential responsible party under the federal and Arkansas stalutes as an "owner" of the USf. Similar concerns are applicable even when a motor fuel supplier leases

or loans a UST to an independently owned retail facility or a commercial account as part of the supply arrangement.

Ill. TECHNIQUES FOR RESOLUTION OF ENVIRONMENTAL ISSUES Even with the heightened awareness of the potential role of environmental issues in commercial transactions, they are not always dealt with in a logical and consistent manner. Part of the problem stems from the fact that environmental issues are often not considered until the commercial transaction is close to consummation. The lack of foresight unfairly places environmental issues in a position of being considered deal breakers, even if only a minor problem potentially exists. More specifically, there is often a failure to consider the degree and type of environmental problem at issue in a particular transaction. This is unfortunate since a variety of creative methods for resolving or allocating many environmental issues are available.

The remainder of this article will attempt to provide a fresh perspective on some familiar tools and an introduction to some new ones. Commercial transaction scenarios that a lawyer may encounter are included to illustrate the aClual application of these techniques and strategies.

There is one caveat, however, that bea", special mention. While these tools and techniques can help quantify or reduce the amount of environmental risk in many commercial transactions, the client must be informed that varying amounts of business risk will usually remain. The inherent uncertainty related to the relevant scientific/technical issues and the fact that environmental legal principles are still evolving means that very few transactions are 100% risk free.

Still, the creative and early use of available tools and techniques may help consummate the commercial transaction thereby keeping the property in commerce and maintaining its value.

A. Environmental Assessments.

(1) Overview. An EA provides information to parties relating to contamination and/or environmental regulatory compliance of improved and unimproved properties. The

"Both the seller and the purchaser sometimes have an incentive to establish a rough baseline through an EA."

objective of the EA is to not only identify potential environmental contamination or regulatory compliance issues, but to avoid the need for guarding against or negotiating around the unknown. Data gathered and interpreted in the EA will provide the parties vital information for decision malcing and adoption of negotiation postures.

Information provided by the EA may also be needed for the effective use of some of the other environmental issue resolution tools discussed in this article. For example, a seller requested to warrant the absence of certain contaminants and substances should be reluctant to provide such a provision for a given area unless there is some level of confidence that none are present. Unless the seller has comprehensive knowledge negarding the previous uses of this portion of the property, an EA by the seller or both parties may be prudent prior to agreeing to such a warranty.

Likewise, a buyer considering the purchase of a facility with USTs such as a gasoline convenience store or truck terminal may want to assess the regulatory compliance status of this equipment. USTs in substantial compliance with the relevant environmental regulations may be eligible for reimbursement for the remediation of post-acquisition petroleum leakage or spillage pursuant to the Arkansas Petroleum Storage Tank Trust Fund.!O A buyer or lessee may use an EA to attempt to identify and quantify environmental risks related to the property or facility.

Both recognize that the federal and slate environmental stalutes may imp:>se remediation obligations on them for contaminants discovered after closing. Besides the simple identification of substances or contaminants that mayor may not require remediation, the optimal result for an initial or subsequent EA is the quantification of the cost to perform such remediation.

Both the seller and the purchaser sometimes have an incentive to estabHsh a rough baseline through an EA. A baseline is an attempt to document the environmental conditions in existence at the time of closing against which future changes can be judged. A seller of a facility or property might use an appropriate baseline to defend against an allegation that hazardous substances discovered after closing were generated by the former owner rendering him or her a CERCLA responsible party.ll Also consider a lessee preparing to execute a lease for a gasoline grocery convenience store or a bulk motor fuel plant. U the facility will be utilized for a similar use, the lessee might be taking a serious risk i1 a baseline is not set prior to acquisition of the leasehold. Otherwise, the lessee may not have the information to counter lessor's argument that contamination existing at the end of the leasehold term was caused by lessee's use. Obviously, the lessor may also wish to set a baseline prior to the beginning of the lease term so that the lessee cannot claim that subsequently discovered motor fuel spillage or leakage was pre-existing. As a practical matter, as discussed below, Arkansas facilities with certain petroleum USTs and aboveground storage tanks ("ASTs") may be eligible for some cleanup cost reimbursement from the Petroleum Storage Tank Trust Fund if certain statutory prerequisites are met.

Equally important, the EA should be strucluned to provide the buyer and lessee the projected future cost of compliance with any applicable environmental regulatory programs. As an example, consider a lessee contemplating entering into a 10ngterm lease agreement for several gasoline/grocery convenience stores with USTs in which he or she will be contractually allocated environmental regulatory compliance responsibilities.

The prudent lessee will quantify the costs to meet the RCRA Subtitle 1 UST leak detection/upgrade requirements over the next several yea",.!2 Similarly, a prospective purchaser or lessee

of a building might consider what the Clean Air Act chlorofluorocarbon phase-out will cost if the air conditioning system must be modified. 13 Regulatory' compliance concerns are not limited to improved properties. For example, a pruspective purchaser of unimproved property in certain suspect areas may wish to determine if it is subject to the FWPCA Wetland 404 permitting requirements by obtaining a delineation from the United States Corps of Engineers or making such determination itself.

(2) Scope.

The scope of the EA will vary with the type of property or facility. It is imperative however, that attorneys remind their clients that the relationship between the value of a facility and the cost of an EA are not symmetrical. A $75.000 dry cleaning facility with ground water contamination is a much more serious threat than a properly operated $10 million manufacturing faciJity. Nonetheless, commercial realities will in many instances dissuade the client from significant assessment efforts on low value properties. Governmental programs such as the Arkansas Petroleum Storage Tank Trust Fund may help ameliorate some of the concerns related. to properties with USTs and ASTs and save EA costs in certain instances.

The actual activities that should be performed during the EA is a combination of the parties' perspective and the potential activities that have or may have taken place on the property or facility. From a potential purchaser or lessee's perspective, for example, there are standard information items such as current and past property use and governmental record reviews. While the existence of USTs or asbestos might be a legitimate question at a large number of commercial facilities, FWPCA or Clean Air Act compliance status issues will be less frequent. Still, even an unimproved piece of property may have regulatory issues. As an example, a potential purchaser considering manufacturing operations adjacent to a water body will need to investigate the cost necessary to obtain a FWPCA NPDES permit in this particular area.

Knowledge of the facility's activities or an initial inspection may indicate that sampling is necessary to determine whether environmental media have been impacted.. Sampling for every conceivable chemical constituent at the property or facility is not practical. While a thorough discussion of sampling is beyond the scope of this article, it is important to note thatthe attorney should, to the extent possible, ensure that the environmental consultant has tailored a sampling plan relevant to past or current activities at the facility. If, for example, the property has a history of degreasing activities, the sampling would include common degreasing constituents. In summary, a combination of intuition, judgment, and experience should be used to tailor the EA's scope of work to meet the client's needs in a commercial transaction.

EAs are performed by consulting firms with various types of technical expertise. Attorneys or clients considering the retention of an environmental consultant to perform an EA should consider a number of issues. The environmental consultant's qualifications are obviously critical. Different facilities or properties may require various types of technical expertise. A purchaser considering the acquisition of several older dry cleaning facilities may need the services of a hydrogeologist if ~ampling for groundwater and/or soil

" ... the EA report should be subject to review by the attorney and client prior to circulation. "

12

ARKANSAS LAWYER

AUTUMN 1993

contamination appears warranted. In contrast, a lessor attempting to determine the amount and type of asbestos in his or her building would need someone familiar with the substance and the different sampling methods.

A written contract between the client and consultant to detail the scope of work is always advisable. The scope of work is extremely important since the perception of attorneys, clients, and consultants as to what constitutes an adequate EA at a given property can vary. Misunderstandings can be disastrous.

Consider, for example, a purchaser considering the acquisition of a dosed restaurant that retains an environmental consultant to perform a "Phase I" EA. The environmental consulting firm only conducts limited asbestos sampling in accessible areas pursuant to its understanding of what constitutes a "Phase I" EA. In contrast, the seller assumes that more extensive asbestos sampling will be performed because the building is scheduled to be demolished after closing.

The limited asbestos sampling is performed and the results are negative. The building is demolished. The Arkansas Asbestos Abatement Regulations are violated because there was apparently undiscovered friable asbestos behind a large stove.

The seller and consultant disagree as to whether a "Phase I" should include the type of asbestos sampling that would have detected the material in this location. This issue would have been addressed if a detailed scope of work had been negotiated.

It must also be remembered that the EA process will generate information concerning the status of a given business' compliance with environmental laws and regulations. Efforts should be made to ensure the environmental consultant is contractually prevented from disclosing sensitive information.

An exception to this restriction might reasonably include governmental requests for disclosure pursuant to the relevant federal and state environmental statutes. Consideration should also be given to whether possible protection of information lhrough the attorney / client or work product doctrines is possible or desirable.

Finally, environmental consultants sometimes inadvertently use inappropriate and unnecessary verbiage in the EA report.

Consequently, the EA report should be subject to review by the attorney and client prior to circulation.

(3) Strategy.

The motivation for a potential purchaser or a lessee to perform an EA prior to the acquisition of a facility is fairly clear.

Neither the purchaser nor the lessee want to acquire a property or facility without some understanding of current contamination or the future regulatory compliance costs.

An aggressive potential purchaser also use an EA that simply identifies certain potential unquantified environmental problems to his or her advantage in negotiations with the seller or lessor. The negotiations for a warehouse/fleet fueling facility offers a possible example.

Suppose an initial EA cited the existence of older petroleum USTs and the failure to obtain a minor air permit for a paint booth emitting volatile organic contaminants. The buyer or lessee might propose consummating the transaction without additional assessment work if a substantial discount in price is provided. The buyer's rationale for taking this risk would be the belief that the USTs are covered by the Arkansas Petroleum Storage Tank Trust Fund and that the failure to obtain an air permit could be resolved without substantial penalties. A nervous or motivated seller might provide a discount to a buyer willing to take risks.

Sellers sometime perform EAs prior to marketing the property or facility in order to prevent a sophisticated buyer from utilizing environmental issues as the price. Advance knowledge and resolution of certain environmental issues may improve the seller's negotiating discount position. Certainly, identification and resolution of the minor air permit matter referenced in the previous example would have eliminated its

use by the buyer as an argument for a price discount. Similarly, a confirmation that the USTs cited in the previous example were in compliance with the relevant regulations and consequently

eligible for the Arkansas Petroleum Storage Tank Trust Fund would provide some comfort about UST spillage or leakage.

Conceivably, the seller could also undertake testing and/or sampling to check for current or historical spillage or leakage. If these efforts confirm the absence of problems or result in a resolution, the seller would have a strong argument that a price discount is not warranted.

A seller undertaking an EA prior to marketing the property is foregoing the possibility of a potential purchaser sharing the cost of this work. More importantly, the seller should recognize that there are risks in undertaking an EA. The most serious is the possibility that the seller will discover environmental regulatory violations or contamination that must be reported to the federal or state environmental agencies.

The seller may also have to address these issues. If the seller continues these non-eompliant activities after learning of them, the violations become knowing and penalties can escalate Significantly. The same is true for failing to notify the relevant governmental authorities about reportable releases or contamination. Therefore, if the seller is considering the performance of an EA, he or she must be prepared to address the violations or conditions discovered.

B. Contractual Allocation of Envirorunental Risks.

A single or series of EAs can sometimes identify and to a certain extent quantify the environmental issues related to a property or facility. The parties can use this information to allocate between themselves the responsibilities and liabilities.

The party negotiating identified and quantified envirorunental issues can usually contractually allocate these known responsibilities and liabilities and proceed to closure of the transaction. Even if complete identification and quantification is not possible, the parties can allocate the unquantified risks between themselves.

Parties negotiating the allocation of risks have a variety of options. For example, a seller that is unwilling to provide an open-ended warranty and indemnity related to possible surficial soil contamination in an old lumber yard might perform the necessary remediation prior to marketing the property or consummating the transaction. As previously discussed, attempting to acquire property with potential or unquantified problems might be compensated through a deep discount in the purchase price.

Parties attempting the aJlocation of environmental issues will typically fall between the two ends of the liability spectrum.

The optimal end result for a seller or lessor is the transfer of the property or facility on a comprehensive "as is" (including detailed disclaimers) with the purchaser or lessee agreeing to provide a broad indemnification. In contrast, the optimal result for the purchaser or lessee is the seller or lessor's retention of all liabilities related to certain defined pre-existing substances and prior regulatory compliance violations. The resolution is of course usually found somewhere between these two extremes.

Caution should be utilized in attempting to protect a client through the contractual allocation of environmental liabilities.

As this section discusses, failure to carefully consider the referenced terms used in "warranties" and "indemnities" could result in the exclusion of certain environmental problems. For example, a warranty simply tied to the admittedly broad CERCLA term "hazardous substance" would not encompass petroleum contamination. 14 Also note that environmental permitting and operating responsibilities at a facility must be allocated. The failure to dearly define these respective responsibilities in a lease could result in neither party addressing them. Both the lessor and lessee could then be subject to penalties since the federal and state environmental statutes encompass each party.

The following discussion is not intended to be a

comprehensive review of contractual provisions such as warranties and indemnities. It is instead intended to focus the attorney on a few of the unique issues that the attorney must address in allocating environmental responsibilities and liabilities in a lease or sales agreement.

Attorneys drafting environmental risk allocation provisions should consider a few additional general principles. ote that the desired environmental risk allocations may sometimes be provided inadvertently by standard contractual provisions. In addition, the direction and degree of environmental risk allocations in agreements are obviously dictated by the bargaining power of the parties. Further, the desirability of environmental risk allocations may be affected by cost implications. A potential purchaser negotiating a comprehensive warranty and indemnity may forego such a provision if the seller demands a 25% increase in the purchase price.

Depending on the property or facility, a purchaser should generally initially consider the following types of warranties: (a) compliance with applicable federal and state environmental statutes, regulations, and orders; (b) the existence and compliance with all necessary permits, registrations, approvals, and lioenses; (d the absence of environmental conditions or situations which may give rise to an action or liability with the federal or state statutes or regulations or the common law; (d) a list of all reports of releases under the various federal and state statutes and regulations; (e) a list of all prior uses of the site and current site conditions; (0 current or former existence of equipment such as USTs or transformers containing polychlorinated biphenyls; and (g) investigation by governmental agencies.

The seller will resist providing warranties unless he or she has information through EAs or other means that verifies these assertions or the purchase price has been increased. The seller should also consider whether the purchaser's post-closing activities will increase the seller's existing or potential envirorunental liability. This will be a difficult issue to address when the purchaser proposes to conduct an activity similar to seller's. In some cases, the selling of a baseline through an EA may be a prudent defensive measure by the seller.

Purchasers sometimes attempt to by-pass standard "as is" and hold harmless provisions through CERCLA or similar state statutory or private contribution actions. IS The success of these actions has been mixed. 16 Still, drafting expansive language referencing the unknown condition of the property and the waiver of federal and state statutory causes of action is prudent.

The seller and purchaser should carefully review certain key definitions in the agreement.

Warranties and indemnities will be tied to certain contaminants and substances. Sometimes they are drafted too broadly. This may be a problem since very few improved properties will be completely devoid of some chemical constituents.

Certain substances may be present in unexpected or

''Attorneys drafting environmental risk allocation provisions should consider a few additional principles. "

unusual locations. For example, care should be taken in agreeing to the absence of substances such as asbestos. Asbestos is found in brake linings and sometimes in roofs. Therefore, a more specific definition for materials such as these is advisable.

Sometimes terms such as CERCLA "hazardous substance" or RCRA "hazardous waste" are referenced. These terms can be underinclusive. The breadth of the RCRA term "hazardous waste" may be misjudged since it sometimes requires a certain quantity or concentration of a given material. Warranties and indemnities

dependent on these terms may not encompass some contamination or problems that state environmental agencies have the authority under other state statutes to address. State agencies often have broad general statutory authorities such as the Arkansas Water and Air Pollution Control Act to address soil and groundwater contamination. These expansive authorities are often used by /IT the agencies to require action .It â&#x20AC;˘ â&#x20AC;˘ for problems not picked up by the other federal or state environmental regulatory programs. A catch-all provision referencing any substances "that require investigation or remediation under federal or state statutes" may be needed.

A related potential error is an indemnity trigger that allocates liability based on noncompliance with environmental statutes and regulations. The fact that contaminants or chemicals are present on a property or facility is often not a violation of federal or state environmental statutes. For example, minor spillage of certain chemkals or substances over a period of time may not be a specific â&#x20AC;˘ /I violation of a particular regulatory program. Yet, the resulting contamination can devalue the property or subject it to a remedjation order from the state.

A related example is asbestos. While the presence of friable asbestos in a building might cause a decrease in value it is usually not a violation of federal or state environmental statutes or regulations. A broader trigger may therefore be needed.

Sellers and purchasers should also carefully review provisions in the agreement addressing the obligation to remediate certain areas of contamination. Verbiage mandating that one of the parties remediate to a government standard or action level may leave certain constituents or chemicals on the property. The indemnified party should recognize that although the property may not have regulatory compliance problems, its value may be effected. Phrases stating that the property will be remediated to allow "full economic use" or to its "previous condition" may sometimes be appropriate.

However, cost effective means are often not available to remove every last molecule.

(2) Lease.

Most of the issues identified in the previous subsection are also applicable to the transfer or acquisition of a leasehold. There are, however, some special considerations related to these types of transactions. A lessee for example would desire an appropriate warranty and indemnity regarding preexisting environmental cond itions.

It is in the best interest of the lessor and lessee to clearly delineate the party responsible for any current and future environmental compliance and remediation issues. The issues that need to be allocated may not be readily apparent. The lessor of a

IS In t h e best interest ofthe lessor and lessee to clearly delineate the party responsible for any current andfuture environmental compliance and remediation Issues.

14

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manufacturing facility clearly understands the necessity of insuring that the lessee maintain and comply with the planrs air and water permits. The need to delineate the responsibility for chlorofluorocarbons ("CFCs") or asbestos maintenance in a building may not be as obvious. Regardless, costs such as these are usually quantifiable and should be allocated between the parties.

The fact that both the lessor and lessee are jointly liable for environmental regulatory violations in many instances may be a reason for the lessor to provide lessee incentives to quickly address potential problems. The lessor might consider provisions that require it to address certain environmental issues if the lessee provides a timely notification to both it and the relevant federal and state agencies. A Lessee leasing a retail motor fuel outlet might be encouraged to address a UST release in a timely manner thereby ensuring access to the Arkansas Petroleum Storage Tank Trust Fund. Without such incentives, the lessee's inaction may exacerbate minor problems.

A lessor should also carefully consider provisions to control lessee's activities and the substances or materials he or she manages. Such provisions must be realistic, however. A shopping center lease banning all hazardous substances and hazardous waste might exclude paint stores and dry cleaners. The lessor will also want to have the authority to address regulatory non-compliance and/or remediation if the lessee does not do so after a certain period of time. The lessee would be required to reimburse lessor for relevant costs.

A lessor may also want to require that it be provided with all reports and correspondence between the federal and state agencies and the lessee. Documentation regarding materials used or stored on site and environmental permitting issues may also be desirable.

C. Governmental Prog'rams and Policies.

A number of governmental programs and policies might be useful in addressing some environmental issues at certain facilities.

Creative use of these programs and policies should nut b~ overlooked.

(I) Petroleum Storage Tank Trust Funds.

Over two-thirds of the states have created petroleum storage tank trust funds ("Trust Funds")." Generally, the state Trust Funds reimburse or pay for corrective action and/or thirdparty claims related to petroleum releases if owners and operators meet certain prerequisites for coverage. The state Trust Funds vary in lerms of funding sources, coverage, prerequisites, types and limits of coverage, and payment methods. The Arkansas Petroleum Storage Tank Trust Fund ("Arkansas Trust Fund") provides a maximum coverage of one million dollars per occurrence for both corrective action and third-party liability. The Arkansas Trust Fund has a $2S,OOO deductible for both corrective action and third-party liability. In order for certain USTs and ASTs to be eligible for reimbursement, certain prerequjsites must be met which generally include: (a) the corrective action has addressed the release; (b) the relevant registration fees have been paid; (c) the owner or operator is in substantial compliance with the relevant regulations; and (d) the ADPC&E was given timely notice of the release and cooperated with the agency.

The Arkansas Trust Fund reimburses the UST owner or operator after the corrective action costs have been incurred or the thirdparty claim paid. The ADPC&E has promulgated specific procedures for parties to follow in seeking reimbursement.

ADPC&E Regulation No. 12 and certain written policies delineate appropriate levels and types of expenditures.

If properly utilized, the Arkansas Trust Fund can provide an inexpensive method of assuring that funds will be available to address certain UST and AST leaks or spills.

(2) EPA Covenant-Not-To-Sue. The federal EPA in very limited instances has and will

provide a prospective purchaser a covenant-not-to-sue for certain pre-existing hazardous substances at a property or facility. This EPA policy is found in a memorandum titled, EPA Policy Memorandum, Guidance or Lmdowner Liability Under Section 107(0)(1)

of CERCLA, De Minimis Settlements Under Section 122(g)(1)(8), and Settlements with Prospective Purchasers of Contaminated Property, June 6, 1989. The EPA notes that its basic policy is not to become involved in private real estate transactions. However, the EPA states that it may consider entering into such agreements if the

prospective purchaser has the financial capability to address the property or facility's existing remediation, the EPA will receive a substantial benefit, the use will not aggravate the existing contamination, and it will save the federal government from using CERCLA monies.

The benefit of reaching such an agreement with the federal EPA is the fact that the purchaser's responsibilities related to the existing contamination will be clearly delineated.. A substantial discount by the seller could in very limited instances make such an agreement with the federal EPA worth seeking.

Also note that most states including Arkansas take the primary role in addressing the majority of environmental issues. Therefore, a prospective purchaser would also need to satisfy him or herself that similar comfort or assurance was available from the state agency. The state of Arkansas does not have a similar written policy. Whether or not the state of Arkansas would enter into such an agreement is of COUISe dependent upon the particular facts and circumstances. The state ADPC&E does seem to enjoy greater flexibility and creativity to resolve issues in a manner that is beneficial to both the public and private sector.

On April 23, 1992, EPA issued a CERCLA regulation intended to clarify the applicability of CERCLA to various activities associated with financing. 21 Specifically, the EPA rule interprets the security interest exemption under CERCLA S 101(20)(A) to exempt from CERCLA liability persons whose "indicia of ownership" in a facility are held primarily to protect the security interest, provided they do not participate in the management of the facility. The rule specifies the range of permissible actions that may be undertaken by the holder of a security interest within the bounds of Section 101 (20)(A) security interest exemption. The regulation specifies that actions such as environmental auditing, loan covenants mandating environmental compliance, and certain foreclosure activities can be conducted without stepping outside the CERCLA secured creclitor exemption. Recent federal judicial decisions interpreting the CERCLA security exemption have used this new regulation in exonerating financial institutions from liability.22 The rule has however been challenged by an industry trade association in the District of Columbia Circuit Court of Appeals.

While only applicable to CERCLA actions, it is hoped that this regulation will ameliorate some financial institution feaTS about funding commercial and industrial property acquisitions and leases. The EPA has stated it is preparing a similar secured creditor exemption rule for the RCRA Subtitle I usr prograrn. 23 IV. CONCLUSION Parties acquiring, selling, or leasing commercial or industrial properties face a number of challenges related to environmental issues. However, Arkansas lawyers can help address these challenges through the creative use of a number of current and developing tools and techniques.

(3) CERCLA Innocent Landowner Provision.

One of the key federal environmental liability statutes contains a provision allowing purchasers to assert a limited affirmative defense to the statutes' strict liability provisions. This provision is known as the CERCLA "innocent landowner defense." 18 A landowner that can demonstrate that it did not know of the hazardous substances on the property or facility at the time of purchase may be eligible for this limited defense. To qualify, the owner must have conducted "all appropriate inquiry" into the condition of the land, including investigation of previous ownerships and uses, in an effort to discover any contamination that might be present. The elements of "all appropriate inquiry" are: . . any specialized knowledge or experience on the part of the [buyer], the relationship of the purchase price to the value of the property if contaminated, commonly known or reasonably ascertainable information about the property, the obviousness of the presence or likely presence of contamination of the property, and the ability to detect such contamination by appropriate inspection.

The determination of what constitutes "all appropriate inquiry"

is susceptible to different interpretations. However, the American Society for Testing Materials recently issued a protocol for what that organization considers the necessary tasks for an adequate inquiry19 This guidance has not been tested in the courts.

The limited CERCLA landowner defense may provide some comfort to prospective purchasers. Please note, however, that it is not applicable to other federal and state environmental statues.

(4) CERCLA Limited Lender Liability Protection. A secured creditor whose activities go beyond simple "indicia of ownership primarily to protect his security interesY' but extend to participation and oversight in the management of a facility may become a responsible party under CERCLA.20 Financial institution fears regarding their potential exposure under CERCLA has caused them to shy away from financing the acquisition or lease of properties that they perceive to have potential environmental issues.

• Walter G. Wright, Jr. is a partner in the Little Rock law firm of Mitchell, Williams, Selig, Gates & Woodyard, where his practice focuses on the transactional, regulatory, and legislative issues relating to environmental and energy law.

ENDNOTES 1. See 33 U.S.C §1344.

2.42 U. S. C § 9601, et seq.

3. 42 U.s.C S 6901, et seq.

4. 33 U.s.C S 1251, et seq.

5. Ark. Code Ann. S 8+101, et seq.

6. Ark. Code Ann. S 8-7-501, et seq, 7. U.S. v South Carolina Recycling & Disposal. [nc., 653 F. Supp. 984 (D.S.C. 1984).

8. 42 U.s.C 55 6901-6991.

9. Arkansas Department of PoUution Control & Ecology Regulation No. 12.

10. Ark. Code Ann. S 8-7-901, e/ seq.

11. CERCLA responsible parties are listed in Section 107(0). 42 U.S.C S 9607(a).

12. See generally 40 CF.R. S 280, et seq.

13. See generally 42 U.s.C S 7671, et seq.

14. See 42 U.S.C S 9601(14).

15. See generally Status 01 Indemnity Agreements Under CERCLA Section 107(e), Toxies L. Rptr. 1351-1355 (April 1, 1992).

16./d 17. See generally Wright, 1n Stora~ Tanks We Trust: An Analysis of Their Role in Protecting the Environment and Small Business, 13 U. Ark. Little Rode L.J. 417 (Spring, 1991).

18.42 U.s.C S 9601(35)(8).

19. ASTM <£1527), ASTM (£1528).

20. United States u. Fleet Factors Corp., 901 F.2d 1550 (9th Or. 1990).

21. 57 Fed. Reg. 18344.

22. See Waterville Industries v. Finance Authority of M1lhle, 1st Crr. W. 921225, Allantic Richfield Co. u. Oaas, CV-90-75 BV-PGH (D. Mont. pending).

23.57 Fed. Reg. 18349 (April 29, 1992).

DISCIPLINARY JOHN I. PURTLE Mr. John I. Purtle, Little Rock, following a public hearing on May 15, 1993, was issued a letter of reprimand for violation of Rule 1.2(a) as a result of a complaint filed by Susan Stafford. In her affidavit of complaint and testimony, Ms. Stafford stated that she and her husband, Steve, were divorced on May 5, 1988. Although she was granted custody, the divorce decree provided that their children could not be removed from Ms. Stafford's parents' home without proper order of the court.

Ms. Stafford reconciled with her husband and they were remarried on April 16, 1991. Previously Ms. Stafford's parents had intervened and been awarded temporary custody of the Stafford's two children at a hearing on February 12, 1991, at which the staffords were not represented by counsel.

Thereafter following termination of another lawyer's services, the Staffords hired Mr. Purtle on August 28, 1991, to help obtain custody of the children. A hearing was scheduled for December 13, 1991, in Pulaski County Chancery Court.

Due to Ms. Stafford's mother's medical treatment the intervenors sought a continuance. Ms. Stafford had no objection when contacted by Mr. Purtle, and from that conversation, believed that the hearing wa, only pu'tponed to be set at a future date. In the late spring of 1992, when Ms. Stafford became discontent with Mr. Purtle's representation in regard to rescheduling a hearing, she reviewed the file in the clerk's office. She discovered that an order approved by Mr. Purtle and entered on December 13, 1991, awarded custody to the intervenors until further orders of the court. It appeared to her that the order was not merely a postponement of the hearing and a continuation of temporary custody in the intervenors, but rather a final order granting custody to the intervenors. Ms. Stafford had only agreed to a continuance and had not consented to award custody to her parents. The Staffords terminated Mr. Purtle's representation and retained other legal counsel. Successor counsel was required to pay filing to reactivate the proceedings.

In his affidavit of response and 16

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testimony, Mr. Purtle stated that he did undertake representation of the staffords concerning custody of their children. He determined that the court had previously awarded custody of the two children to Ms. Stafford's mother until the staffords obtained a suitable home environment for the children. He advised the staffords on several occasions to go to work and get a suitable place for the children to live, but the staffords failed to do so. Mr. Purtle was informed that opposing counsel intended to put on evidence disparaging Ms. Stafford's character and that she had no contact with her children for several months. He also stated that he became aware a week or two before the scheduled hearing, that Mr. Stafford had physically abused Ms. Stafford.

When intervenors' counsel, Mr. Newcomb, wanted to continue the scheduled hearing due to his client's illness Mr. Purtle gladly agreed because he did not feel his clients could prevail at that time. He stated that the staffords had previously agreed to a continuance and that the order he approved on their behalf merely continued the existing custody

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arrangement. Mr. Newcomb testified that he prepared the order for Mr. Purtle's approval. He further stated that the trial court, in view of the reporting requirements on the status of pending cases at year's end, desired that the order be phrased so that the matter would not remain in the category of pending cases. Mr. Purtle approved the order on reliance of his understanding of counsel's intent that the case would remain open pending the setting of a new hearing date and his judgment that the order maintained the status quo.

Additionally, he viewed the order as granting his clients more liberal visitation than they previously enjoyed.

Mr. Purtle conceded that, in retrospect, the order cuuld be interpreted as a final adjudication and award of custody to the intervenors.

DAVID P. HENRY Mr. David P. Henry, Little Rock, was issued a letter of caution for violation of Rules 7.1(a) and 7.2(d) as a result of a complaint by Lynne H. Short. In her

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DISCIPLINARY affidavit of complaint, Ms. Short indicated that she had listed her house for sale and an offer had been made but somehow the deal went awry. Ms. Short received a letter dated July 30,1992, from the buyer's attorney requesting payment of damages for the breach or suit would be filed. Ms. Short found an ad in the yellow pages for Arkansas Attorneys Association Lawyer Referral Service. The advertisement did not contain the name of any lawyer. Ms. Short called and upon stating her need for a real estate attorney, the receptionist immediately transferred her call to Mr. Henry and he agreed to represent her. Ms. Short met with Mr. Henry and paid a $250 retainer. Subsequent attempts by Ms. Short to contact him were unsuccessful.

Mr. Henry's office assured Ms. Short that everything was taken care of. Ms. Short received a letter dated August 31, from the other party's lawyer stating that no response had been received. to his earlier letter. Ms. Short then faxed the letter to Mr. Henry for explanation. He responded to the other attorney on September 3. Ms. Short was not satisfied with his

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explanation and response and terminated Mr. Henry's services September 8.

His affidavit of response indicates that the referral service is a non-profit corporation for referral of legal matters to its members possessing expertise in the particular legal field. At the time of Ms. Short's referral inquiry, Mr. Henry was the only member attorney with real estate law experience. His supplemental affidavit of response indicates that after the concept of the referral service was refined, he contacted a yellow page representative and learned that the deadiine for placing a yellow page ad was approaching. The first ad was actually placed before the non-profit corporation was formed. The yellow page ad was to appear under attorney referral service and before the countless attorney yellow page advertisements. The thrust was that of providing a professional approach to advertising which emphasized service and, at the same time, counsel. The initial plan was thwarted by the location of the ad in the rear of the attorney section and not in the front. The first attempt to solicit

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members was therefore without success.

Subsequently, the referral service became a back burner idea with some random telephone calls to the yellow page telephone numbers which were answered. at Mr. Henry's law firm on a separate line.

His law firm paid for the services of the receptionist and for the separate phone line. It was only as a temporary start-up mechanism that the phone was being answered by personnel at Mr. Henry's law firm.

LOUIS ARTHUR DODRILL Following a one year suspension from the practice of law imposed on February 10, 1992, lhe Committee on Professional Conduct has reinstated the license of Louis Arthur Dodrill effective July 13, 1993.

DAVIS HENRY LaffIN Mr. Davis Henry Loftin, West Memphis, was issued a letter of reprimand for violation of Rules 1.1, 1.3 and 8.4(d) as a result of the Arkansas Supreme Court's Per Curiam for appellant Irwin Gidron. On February 8, 1993, a per curiam order was issued from the Supreme Court of Arkansas granting Mr. Gidron's pro se motion for rule on the clerk. On March 26, 1990, judgment was entered in Crittenden County Circuit Court against Mr. Gidron. On April 18, 1990, Mr. Loftin, as his appointed attorney at trial, filed a motion for a new trial and a request that another attorney be appointed. Apparently, the motion was not acted on by the trial court, and on May 18, 1990, Mr. Loftin filed a notice of appeal. The record was never tendered. to the Court.

Mr. Loftin did not respond to the allegations against him within the time

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DISCIPLINARY provided for in the Court's Procedures, in spite of the fact that he was directed to Section 5 of those procedures which sets forth the length of time within which to respond. However, an untimely response was received in which Mr. Loftin averred that, through the Public Defender's office, he was appointed to represent Mr. Gidron. Following the conviction, Mr. Loftin filed a otice Of Appeal, but Mr. Gidron subsequently filed a Motion alleging that counsel was ineffective at trial, and Mr. Loftin and the Public Defender felt that the office should no longer represent Mr. Gidron. Mr. Loftin stated that he was extremely overworked, but that he believed a Motion To Withdraw As Counsel And To Appoint Substitute Counsel On Appeal had been filed and another attorney appointed to represent Mr. Gidron. However, due to the workload, Mr. Loftin unintentionally failed to ensure that that had been done.

Finally, Mr. Loftin stated that he has proceeded with the appeal, and an abstract and brief have been filed with the Supreme Court.

JAMES P. MASSIE Mr. James P. Massie, Little Rock, following a public hearing on May 15, 1993, as issued a letter of reprimand for violation of Rules 1.1, 1.3 and 8.4(d) as a result of a Per Curiam issued by the Arkansas Court of Appeals. On February 10, 1993, a per curiam from the Arkansas Court of Appeals was issued granting appellant Kenneth Hill's pro se motion for reconsideration of an order dismissing the appeal. Kenneth Hill was represented at trial by Mr. Massie, his retained counsel, where he was found guilty of conspiracy to deliver cocaine and sentenced tu LlUrty years. Mr. Massie filed a notice of appeal in Mr. Hill's case and was granted the first extension of brief time until March 14,1992. On March 16, 1992, a second motion for extension was granted giving Mr. Massie until April 13, 1992 to file the brief. No brief was tendered on that day, instead, a third motion for extension was filed. Ultimately, Mr. Massie tendered the abstract and brief on July 6, 1992, however, the brief was late and was submitted in the wrong format. He was informed of the inadequacy of the brief and Mr. Massie's motion to file belated brief was granted, with a corrected brief due on july 29, 1992. 0 corrected brief 18

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was filed and the State moved to dismiss.

The motion was granted. Kenneth Hill then filed his pro se motion for reconsideration which was granted and new counsel was appointed.

In his affidavit of response, Mr. Massie denied having done anything wrong in the matter of Kenneth Hill. He stated that he did represent Kenneth Hill and that he did file the brief. He indicated that he had a stroke during the pendency of the appeal which may have interfered with his complete memory, but that to the best of his knowledge, aU things were proper.

A similar case was already pending before the Committee at the time of this complaint. Mr. Massie requested a de novo hearing in the previous case and requested that the Committee withhold its decision on this complaint and have it considered by the Committee at the de novo hearing which had already been scheduled.

Mr. Massie's testimony at the de novo hearing indicated that his medical problems stemming from his stroke during the pendency of the appeal caused the delays. Testimony and evidence from several judges, attorneys, doctors and lay persons, who are familiar with Mr. Massie, his practice and his medical condition, were received. That testimony and evidence reflected that Mr. Massie had suffered a stroke which had affected his practice for the period of time during the pendency of the appeal and which had contributed to his inability to handle his caseload.

Mr. James P. Massie, Little Rock, following a public hearing on May 15, 1993, was issued a letter of reprimand for violation of Rules 1.3, 3.4 and 84.(d) as a result of his being found in contempt of the Arkansas Supreme Court. Appellant Ronnie Reed's counsel petitioned to be relieved as appellate counsel on February 14, 1992. The brief was due on February 22. On February 28, 1992, Mr. Massie moved to substitute as counsel. That motion was granted and the due date of the brief was extended to May 2, 1992. On May 4, Mr. Massie asked for an extension until june 18, and on that date he requested an additional fifteen days. On july 6, Mr. Massie requested another thirty days and the Court extended the due date until August 2, 1992, declaring it to be the final extension. He requested an additional twelve days on August 3. On

OPINIONS

August 4, the Clerk returned the motion and informed him that he would need to file a motion for belated brief. He did not file the motion or the brief, and appe11ant Reed filed a pro se motion to relieve Mr. Massie as his counsel. On October 19, 1992, the Court denied appellant's pro se motion and issued a per curiam directing Mr. Massie to appear and show cause why he should not be held in contempt of court. Mr. Massie appeared and was found in contempt and fined $250 by the per curiam order of November 23. Mr.

Massie filed the appeal brief on November 18, 1992.

In his affidavit of response, Mr. Massie stated that the appellant's failure to pay the agreed fees and expenses caused him great financial hardship and resulted in the delays in completing the brief. He also

stated that he suffered a stroke which required five days hospitalization and several weeks of rehabilitation during the pendency of the appeal. Subsequent to the Committee's action by written ballot vote, Mr. Massie requested a de novo hearing. His testimony indic.,ted that his medical problems stemming from his stroke during the pendency of the appeal caused the delays. Testimony and evidence from several judges, attorneys, doctors and lay persons, who are familiar with Mr. Massie, his practice and his medical condition, were received. That testimony and evidence reflected that he had suffered a stroke which had affected his practice for the period of time during the pendency of the appeal and which had contributed to his inability to handle his caseload.

EARL P. HAFER Mr. Earl P. Hafer, Bentonville, was suspended from the practice of law for six months for violation of Rules 8.4(b) and 8.4(c) as a result of a complaint before the Committee. The Municipal Court of the City of Fayetteville docket sheet reflects that on February 10, 1992, Mr. Hafer was arrested for shoplifting and on ovember 18, 1992, he entered a plea of nolo contendre to said offense, a Class A misdemeanor. The complaint was sent by certified, restricted delivery mail on December 29, 1992, to Mr. Hafer's address as it appears on the registry of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was

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DISCIPLINARY returned by the postal authorities with the notation, "Attempted Not Known".

ACTIONS

/

ADVISORY

formal complaint was submitted to the Comntittee for adjudication.

Pursuant to the Procedures of the

Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Section 56(1), the formal complaint was submitted to the Committee for adjucUcation.

CECIL R. KILDOW Mr. Cecil R. KiJdow, Pocahontas, was suspended from the practice of law for six months for violation of Rules 1.3. 1.4(a), 8.4(c) and 8.4(d) as a result of a complaint filed by Ms. Jackie Pierce. In her affidavit, Jackie Pierce stated that she hired Mr.

Kildow in August, 1992, to file bankruptcy. In November, when she had completed payment of his fee, Mr. KiJdow told her the bankruptcy would take two or three weeks. Ms. Pierce stated that two appOiJltments were not kept by him and several messages went unreturned. Ms. Pierce asked for a refund by certified mail which was returned to her "Unclaimed".

Finally, Ms. Pierce states a meeting was arranged on March 1, 1993, at which time Mr. KiJdow promised to return her papers the following day. Ms. Pierce learned, upon receipt of the papers, that they were never filed. She states that since that time she had been unable to contact Mr. Kildow. The complaint was sent by certified, restricted delivery mail on May 26,1993, to Mr. Kildow's address as it appears on the register of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was returned by the postal authorities with the notation, "Unclaimed". Pursuant to the Procedures of Attorneys at Law, Section 56(1), the

Mr. Cecil R. Kildow, Pocahontas, was issued a letter of reprimand for violation of Rules 1.3 and 8.4(d) as a result of the Arkansas Supreme Court's Per Curiam for appellants Chad Eveland, Charles Provance and Scotty Hancock. The per curiam was issued in the Supreme Court of Arkansas on May 10, 1993. The petitioners had moved pro 50 for a belated appeal alleging they informed Mr. KiJdow of their desire to appeal, and that he agreed to proceed. Mr. Kildow filed a motion for belated appeal for the petitioners on March 22, 1993, acknowledging the failure to file the notice of appeal was his fault and not the fault of the petitioners. The per curiam complaint was sent by certified, restricted delivery mail on May 27, 1993, to Mr. Kildow's address as it appears on the registry of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was returned by the postal authorities with the notation "Unclaimed." Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Section 56(1), the formal complaint was submitted to the Comntittee for adjudication.

John Frederick McEwen, Newport, was suspended from the practice of law for six months for violation of Rules 1.3, 1.4(a), 1.16(d) and 8.4(d) as a result of a complaint filed by Harold L. Pope. In his affidavit of complaint, Mr. Pope stated that he hired Mr. McEwen on October 21,

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1991, to probate the estate of his deceased mother. Mr. Pope stated that he paid Mr. McEwen $500 as a retainer. For three months thereafter he was unable to contact his attorney and on February 10, 1992, sent him a letter terminating the representation. Mr. Pope stated that he received no response from Mr. McEwen and was forced to retain another attorney to handle the proceedings. The complaint was sent by certified, restricted delivery mail on May 3, 1993, to Mr. McEwen's address as it appears on the registry of attorneys kept by the Clerk of the Arkansas Supreme Court. The complaint was returned by the postal authorities with the notation that the addressee was no longer there and there was no forwarding order on file. Pursuant to the Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law, Section 56(1), the formal complaint was submitted to the Committee for adjudication.

JOHN R. HENRY Mr. John R. Henry, Harrisburg, was issued a letter of reprimand for violation of Rules 1.3, 1.4(a) and 8.4(d) as a result of a complaint filed by Ms. Pauline Oark. In

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DISCIPLINARY her affidavit of complaint, Ms. Clark

alleged that in February of 1989, she paid Mr. Henry $2,500 to obtain a reduction of her son's sentence. Ms. Clark alleged that he never visited her son at the Arkansas Department of Correction and that he never responded to two certified letters

requesting a refund.

In his affidavit of response, Mr. Henry stated that he investigated, researched, studied and concluded that a collateral attack would be unsuccessful. He stated that he then focused on parole and/or

ACTIONS

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ADVISORY

Summerville. He worked continually on the client's behalf and visited him in prison. Mr. Battle provided letters from individuals on the prison's screening committee indicating he made phone calls on Mr. Summerville's behalf. He stated that he earned his fee and that no refund was due Mr. Summerville. In fact, Mr. Battle pointed out that, conceivably, he could work on this case another twenty years and still not receive the balance of the contract.

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qualifying for release through controlling legislative acts. Mr. Henry indicated that he had spoken with people who knew Mr. Clark; some of whom had served time with him. Mr. Henry averred that he was

accessible, always kept the Clarks fully advised and spent more than fifty hours working on the case.

HAYWARD N. BATILE Mr. Hayward M. Battle, Little Rock, was issued a letter of caution for violation

of Rules 1.4(a), 1.5(a), 1.16(d) and 8.4(d) as a result of a complaint filed by Mr. Floyd Summerville. In his affidavit, Floyd Summerville, an inmate, stated that he paid $2,000 to Mr. Battle in October, 1990, to pursue parole or to obtain executive clemency. The employment agreement contemplated the payment of another $2,000 upon Mr. Summerville's release.

Mr. Summerville stated that after payment of the initial fee Mr. Battle never contacted him or responded to his letters or telephone calls. He wrote the Committee on Professional Conduct on September 18, 1992, seeking assistance.

DONALD JOE ADAMS Mr. Donald Joe Adams, Harrison, was issued a letter of reprimand for violation

of Rules 1.3, 1.4(a), 1.5(c) and 8.4(d) as a result of a complaint filed by Mr. John David Underwood. In his affidavit, Mr. Underwood stated that as an architect, he did a lot of work for a Mr. Tom Embach of Leisure Homes, Inc. in Mountain Home.

At some point, Mr. Embach decided to change architects on some projects which caused Mr. Underwood to lose several

thousand dollars. He then began putting their agreements in writing. [n 1987, Mr. Underwood contacted Mr. Adams to file suit against Mr. Embach and to collect the architect's fee owed Mr. Underwood.

While no fee contract was signed, Mr.

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staff sent Mr. Battle an informal letter setting forth a summary of Mr. Summerville's concerns for whatever action or consideration he might deem appropriate.

According to Mr. Summerville, Mr. Battle did not provide him with any response or explanation

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following the Committee's letter. The complainant also wrote him on September

24, 1992, demanding refund of the fee on the grounds that he felt he received no legal services from Mr. Battle. Mr. Summerville received no reply to that letter.

In response, Mr. Battle stated that he had

been

in

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Mr.

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Adams and Mr. Underwood agreed on a 1/3 fee. Apparently, over a period of three years, Mr. Adams suggested a variety of reasons for not filing the lawsuit and later had several excuses as to why no hearings were being held. Other times, Mr. Underwood stated that he had problems contacting Mr. Adams. Fi.nally, Mr. Underwood was unable to determine that a lawsuit was ever filed. Mr. Adams' response acknowledged that certain of his conduct and statements to Mr. Underwood would have caused him to reasonably believe that his legal matter was being actively pursued. Further, his response tacitly admitted his failure to

execute a written contingent fee contract, his lack of diligence and failure to keep the client properly informed about the status of the legal matter.

Mr. Donald joe Adams, Harrison, was issued a letter of reprimand for violation of Rules 1.3, 1.4(.) and 8.4(d) as a result of a complaint filed by Mr. Richard 0' ea!.

In his affidavit, Mr. 0' eal stated that he and his wife hired Mr. Adams to assist them in restoring a right-of-way to their land. A complaint was filed in December, 1986, and an adverse judgment was rendered in September, 1988. Mr. O'Neal paid Mr. Adams $500 for the transcript

and he filed a Notice Of Intent To Appea!.

Over the next two or three years Mr. O'Neal received several reasons as to why the appeal had not yet been heard.

FinaUy, in 1991, the 0' eals went to Mr. Adams' office where he told them that the court reporter had taken their money without transcribing the proceedings.

Consequently, their appeal was never heard.

For his response, Mr. Adams stated that foUowing the adverse ruling of the ChanceUor, he advised the O'Neals not to appeal, but they insisted. However, the date the transcript was due did not get calendared and Mr. Adams did not get the transcript. About two weeks later, upon discovering the oversight, Mr. Adams attempted, unsuccessfully, to obtain a refund. He offered to try and get an easement to their property as his expense, but they refused and hired another attorney who advised that they file charges against the court reporter. Mr. Adams appeared at that hearing and testified that the error was his.

SARA M. SIMPSON SAWYER Sara M. Simpson Sawyer, Monticello, Arkansas, was issued a caution for violation of Model Rules 1.1. 1.3 and

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ARKANSAS LAWYER

AUTUMN 1993

8.4(d) as a result of a complaint by Ruby j.

Burton. In her affidavit of complaint, Ms. Burton stated that she hired Ms. Sawyer to handle a medical malpractice and wrongful death action. On or about january 3, 1990, Ms. Sawyer filed the complaint but inadvertently omitted the summons from the certified mail for service on the defendant. The defendants then filed a motion to dismiss based on the improper service of process and failure to comply with the Medical Malpractice Act. The judge ordered the complaint dismissed with prejudice for failure to comply with the Arkansas Medical Malpractice Act, which prohibits the inclusion of ad damnum clauses in medical malpractice complaints. On August 2, 1990, Ms. Sawyer filed a notice of appeal and a motion requesting the maximum extension of time to lodge the record. Ms. Burton then indicated that Ms. Sawyer failed to ensure that an extension order was entered and that the clerk of the appellate court refused to accept the record when tendered. Ms. Burton then stated that Ms. Sawyer waited six weeks to file a motion for rule on the clerk which was ultimately dismissed. Ms. Sawyer stated in her affidavit of response that she informed Ms. Burton that she was unseasoned in the finer points of Arkansas civil procedure. Ms. Sawyer stated that based upon her research, she thought the court's dismissal was in error.

Ms. Sawyer indicated that she timely filed the notice of appeal and carried a proposed order extending time to judge Roberts. Ms. Sawyer averred that the judge was to sign and to file the order anti, in (ad, later confirmed that he had.

Ms. Sawyer concluded by adding that upon discove,ring that the order was not in the file, she drafted another and had it entered.

DENNIS ZOLPER Dennis Zolper, Jonesboru, Arkansas, was issued a reprimand for violation of Model Rules 1.1, 1.4(b), and 1.7(b) as a result of a complaint by Rebecca Hudson.

Ms. Hudson stated in her affidavit that sometime in February of 1991, she began discussions with Julie Purputidis concerning purchase of a florist shop known as liThe Little Difference." Ms. Hudson, aware that the business was involved in ongoing litigation, stated that she wanted an attorney to analyze everything. Ms. Hudson stated that Ms. Purputidis, the defendant in the action, recommended her attorney, Mr. Zolper since he had been involved with the

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litigation from the beginning. Ms. Hudson

wished to purchase a fifty percent (50%)

for three years, and ordered to perform

indicated that Mr. Zolper assured her that

interest in the business. Mr. Zolper stated that at no time, did Ms. Hudson indicate that she was retaining his services as her attorney. Mr. Zolper averred that he advised Ms. Purputidis that since she was not conveying assets, but was merely selling an interest in her business, that this clid not violate the injunction. Mr. Zolper said that he did recall mentioning to Ms. Purputidis and Ms. Hudson that if the plaintiff, Ms. Boyd, was successful in her lawsuit, that she could possibly have a lien on Ms. Purputidis' one-half interest in

forty (40) hours of community service. In

there was nothing to worry about, that the plaintiff in the ongoing litigation would

not be able to get the shop, and that Ms. Hudson would not be personally liable for any debts. Ms. Hudson also stated that Mr. Zolpcr advised her that it would be

alright to use the inventory in the shop for secured collateral on the bank note. Ms.

Hudson averred that Mr. Zolper then drafted a partnership agreement, a receipt for part of the purchase price, and a promissory note for the remainder. Ms. Hudson stated that she became aware that the court had previously restrained. and

enjoined Ms. Purputidis from removing or selling any assets or inventory of the business other than in the normal course of business. On August 14, 1992, the court found Ms. Purputidis violated the court's

the assets of the partnership. Mr. Zolper indicated that he drafted the agreement and it was reviewed and signed by both Ms. Purputidis and Ms. Hudson. Mr.

Purputidis.

previous order and was in contempt of

Zolper personally paid the fine levied by the court against Ms. Purputidis. In his affidavit of response, Mr. ZoIper stated that Ms. Hudson came to his office with Ms. Purputidis and indicated that she

complaint were true. He stated that he failed to timely file said income tax return because of a personal tragedy which occurred while he was in the process of preparing his return. Mr. Kroha indicated that his fiancee was suddenly stricken with a serious disease and after approximately twenty days in intensive care, died. Mr. Kroha concluded by

stating that he has timely filed his 1991 and 1993 returns and has begun performing the community service and

paying the fine imposed by the court.

Zolper also indicated that he clid pay the contempt of court fine levied against Ms.

court. Ms. Hudson stated that a judgment was also entered granting the plaintiff money damages and a lien against one half of the assets of the business. Ms. Hudson concluded by stating that Mr.

Mr. Kroha's affidavit of response, he

stated that the allegations of the

DANIEL J. KROHA

J. SKYLAR TAPP J. Skylar Tapp, Hot Springs, Arkansas, following a public hearing on July 10, 1993, was issued a caution for violation of

Model Rules 1.3, 1.4(a), and 1.16(d) as a Daniel J. Kroha, Little Rock, Arkansas,

result of a complaint by Dr. Lawrence

was issued a reprimand for violation of

Kollenberg. In his affidavit and testimony, Dr. Kollenberg stated that he paid Mr. Tapp a $1,000.00 retainer on July 3, 1992,

Model Rule 8.4(b) as a result of a judgment in a criminal case wherein Mr.

Kroha plead guilty to one count of wilUuI failure to file tax return. Mr. Kroha was

fined 52.500.00, was placed on probation

THE LAW OFFICE OF

to begin proceedings against a hospital following a denial of his application for hospital staff privileges. Two weeks later, in response to his inquiry, Mr. Tapp's

secretary told Dr. Kollenberg to call back the next week to get a progress report

because she did not believe any work had

WOMACK, LANDIS, PHELPS, MCNEILL & MCDANIEL

been done at that point. When Dr.

Kollenberg called back, he was told that work was progressing and that he would be contacted in a week or ten days.

Approximately two weeks later, Dr.

Kollenberg called Mr. Tapp's office and

A PROFESSlONALASSOCIATlON lS PLEASED TO AN NOUNCE THAT

September 17, 1992, Dr. Kollenberg went

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to Mr. Tapp's office and discovered that no documents or correspondence had been prepared. Later that day, Dr. Kollenberg terminated Mr. Tapp's services and requested the return of aU his documents as well as the retainer. No response from Mr. Tapp was forthcoming and Dr. Kollenberg's attempt to make an appointment was refused. Although Mr. Tapp failed to submit a response to the complaint, he timely requested a de novo hearing.

Mr. Tapp's testimony acknowledged his agreement to represent Dr. KoUenberg in an attempt to gain staff privileges a the hospital. However, Mr. Tapp indicated that the representation did not entail the immediate filing of a

JONESBORO, ARKANSAS

lawsuit, although this may have been

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24 ARKANSAS LAWYER

received a similar reply. Thereafter, the several telephone messages he left for Mr. Tapp were never returned. About

AUTUMN 1993

DAVID LANDlS PAUL MCNElLL BRANT PERKINS

misunderstood by Dr. Kollenberg. Mr. Tapp stated that he had been involved previously in litigation with the corporate entity operating the hospital, was aware of other litigation against the hospital, and knew of the corporate entity's reputation for aggressive defense of any suits brought against it. Therefore, Mr. Tapp averred, it was his intent to negotiate with the hospital's administrative authorities to reconsider the matter of Dr. KoUenberg's hospital privileges. The fee was not for the purpose of filing suit and litigating the issue and, in the event litigation became necessary, additional arrangements would have had to be made for the expense of litigation. Mr. Tapp stated that he had performed some legal work on Dr. KoUenberg's legal matter. Mr. Tapp had prior familiarity with the hospital's bylaws, however, he re-acquainted himself with certain sections, studied Dr. Kollenberg's qualifications and other information he provided, and communicated with and received information from a county official because a prior agreement between the county and the hospital regarding certain aspects of the hospital's operation had potential applicability to Dr. KoUenberg's case. As a negotiating tool, Mr. Tapp drafted a complaint on his computer, but it had not been reduced to printed form and was unavailable when Dr. KoUenberg came to the office to review the status of his case.

Mr. Tapp said that he was a single practitioner engaged in the general practice of law. He stated he was the attorney in many legal matters, a great number of which were aiminal cases, and spent a substantial portion of his time in court. During the course of Dr. Kollenberg's representation, Mr. Tapp was involved in some complicated and time consuming criminal litigation of a serious nature. Con equently, Mr. Tapp acknowledged that he was not always available to Dr. Kollenberg when he tried to communicate with him. Further, Mr. Tapp recognized that he needed to augment the staff of his law office or limit the obligations he undertakes. Mr. Tapp testified that the entire advance fee was refunded to Dr. KoUenberg prior to any disciplinary action by the Committee. Dr. KoJlenberg confirmed receipt of the refunded fee.

suspension was based on a complaint by Mr. Brian Frame, of Verex Assurance, Inc. In his affidavit, Mr. Frank slated that Mr. Jeremiah was hired on or about September 16, 1991, by Verex Assurance, Inc. to domesticate a foreign judgment.

Mr. Frame indicated that Mr. Jeremiah was paid $100.00 for the domestication action and was to be paid on an hourly basis for any garnishment action. In October, 1991, Mr. Frame contacted Mr. Jeremiah for a status report and was informed that the action was filed and was awaiting service of process to proceed. In ovember, 1991, Mr. jeremiah was contacted and stated that he was proceeding with service via publication.

In january of 1992, Mr. jeremiah indicated that the domestication action had been completed. At that time, Mr. Frame requested that Mr. Jeremiah file a wage garnishment and send a copy of the Arkansas judgment to Verex. In February of 1992, Mr. jeremiah stated that the garnishment action had been filed. Unable to further contact Mr. jeremiah by phone, Mr. Frame sent a written request for a

status report and a copy of the judgment on May 6, 1992. On or about September 14, 1992, Mr. Frame stated that he learned the foreign judgment had never been filed. Mr. Frame indicated that he then sent a written demand to Mr. Jeremiah demanding the return of all documents and the advanced fee. Mr. Frame stated that he received no response from Mr. Jeremiah. Mr. Jeremiah did not respond to the affidavit of complaint against him.

JOHN F. ARENS john F. Arens, Fayetteville, Arkansas, was issued a reprimand for violation of Model Rules 1.3, l.4(a), 1.16(d), 5.1(a), 5.5(b) and 8.4(d) as a result of a complaint

by Mr. and Mrs. F.L. Schneider. In their affidavit, Mr. and Mrs. F.L. Schneider, Missouri residents, stated that on january 28, 1991, they entered into an agreement with Mr. Arens and paid him a $10,000.00 retainer. Mr. Arens was to file a complaint against Simmons Industries, Inc. In March, 1991, Corinne Corley. an attorney

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ROGER T. JEREMIAH Roger T. Jeremiah, Van Buren, Arkansas, was suspended from the practice of law for a period of one (1) year for violations of Model Rules 1.3, 1.4(a), 1.l6(d), 8.4(c), and 8.4(d). Mr. jeremiah's

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with the Arens firm, and her law clerk went to the Schneider's home and voiced concerns about the statute of limitations, stating that immediate action was necessary. However, on May 2, 1991, Mr. Arens told the Schneiders there was enough time to file an action, and on May 14, 1991, a Complaint was filed. On June 7, 1991, a Motion To Dismiss was filed, but the Arens firm djd not file a response.

On September 30, 1991, attorney Eldered Bell, an associate with Arens' firm, deposed two potential witnesses.

However, Mr. Bell was not licensed to practice law in Arkansas. In April, 1992, Ms. Corley, who had been assigned the case, notified the Schneiders that she was leaving the firm, and that case management had been reassigned. The Schneiders tried for two months to schedule an appointment with Mr. Arens and finally met with him on August 7, 1992. At that time he told them that he would be prepared (ur courl in the next few days. Mr. Arens' next contact with the Schneiders was by letter on October 24, 1992, advising them to seek other legal counsel. Mr. Arens stated, that a response to the complaint was djfficult because all files, records and pleadings had been returned to the Schneiders. Mr. Arens stated in his affidavit of response that he

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AUTUMN 1993

must rely on Ms. Corley's letter to the Missouri Disciplinary Counsel, wherein her views of the interviews and discussions were set out. Mr. Arens said, that in addition to the $10,000.00 retainer, the Schneiders were responsible for costs, including local counsel. He slated that Ms. Corley was assigned the case because she was licensed in Arkansas and M_issouri, and Mr. Bell, who was licensed in Mis ouri, handled Ms. Corley's cases when she went on leave. Mr. Arens averred that Mr. Bell had applied to take the Arkansas Bar Exam and that as far as he knew, Mr. Bell handled no Arkansas cases. Further, (ollowing Mr. Arens' August meeting with the Schneiders, he met with Mr. Bell to express his ilisappointment with the way the case had been handled since Ms. Corley's resignation. Less than one week later, Mr. Bell and senior attorneys at the firm resigned. As to the Motion To Dismiss, Mr. Arens stated that because Ms. Corley told him the motion was appropriately handled, he was sure the case was not dismissed. Finally, it was Mr. Arens' opinion that the circumstances leading to the filing of this complaint were beyond his control.

John F. Arens, FayettevilJe, Arkansas was suspended from practice of law for one (l) year for a violation of Model Rules 1.3, 1.4(a), 1.16(d) as a result of a complaint by Rodney Joseph and Donald Courville. In their affidavit of complaint, Rodney and Donald Courville stated that Mr. Arens was contacted to represent them in a dispute with the Corps of Engineers concerning some property they held in Louisiana. On February 19, 1992, the Courvilles signed an agreement for representation which included a $15,000.00, non-refundable retainer. Arens Law Firm was to fully pursue the matter including any appeals. Each of the Courvilles paid Mr. Arens $7,500.00 and counsel commenced work. Mr. Kevin Murray, an attorney with the firm, was assig-ned to the case and the Courvilles had no further contact with Mr. Arens. In August of 1992, Mr. Murray withdrew as counsel because he was resigning from the firm. Mr. Raymond Boyles, acting as a visiting attorney, was assigned to the case; however, in October of 1992, Mr. Boyles also withdrew and Mr. Arens took over the case. On October 21, 1992, the Courvilles received a letter from Mr. Arens recommending that they immediately seek alternate legal representation. The Courvilles were subsequently unable to contact Mr. Arens.

Mr. Arens stated in his affidavit of

response that the facts stated by the Courvilles are substantially accurate with some exceptions. Mr. Kevin Murray was assigned to the Courvilles' case and that Mr. Arens was at a disadvantage in describing the specific activity on the case because all files, records, and pleadings were turned over to Mr. Murray after he left the firm. On August 13, 1992, all senior attorneys at the firm resigned and during the following wee,ks, aU remaining attorneys resigned with the exception of Richard Arens, a recent law school graduate. Mr. Arens stated that he did advise the Courvilles to seek other counsel, and that since that time the firm lost or was forced to layoff all of its employees. Phones have been shut off, and he has been locked out of his former offices. Mr. Arens' affidavit of response indicates that he is greatly distressed that he was unable to fulfill his commitments to his clients.

GUY H. JONES, JR. Guy H. Jones, Jr., Conway, Arkansas, was suspended from the practice of law for six (6) months for violations of Model Rules 1.3, 1.4(a) and 8.4(d) as a result of a complaint filed by Ms. Mary Anna Jones.

In her affidavit of complaint, Ms. Jones stated that she and her two sons were travelling on a state highway, when, through no fault of her own, they were involved in a head-on collision, killing one son and causing extensive injuries to her and her other son. She hired Mr. Jones approximately three months later to represent her in all matters arising out of the accident. Following a year of regular correspondence, in January, 1987, the client received a letter from Mr. Jones indicating his hope that a settlement could be reached in order to avoid a trial.

Ms. Jones stated that in September, 1988, she became aware of time limitations and learned from Mr. Jones that a lawsuit was never filed. However, a lawsuit was filed soon after. On September 19, 1988, Mr. Jones received a letter from the U. S. District Court requiring more specific identity of the unknown defendants and their residences. Mr. Jones' response, apparently, was insufficient, because on May 2, 1989, he received a similar letter requiring action within eleven days. On May 19, 1989, the case was dismissed for, among other things, lack of subject matter jurisdiction. Mr. Jones filed an appeal, but it was dismissed for failure to prosecute.

He refiled the complaint on November 6, 1990, and received a letter from the District Court on November 7,1990,

reminding him of the previous problems, as well as others, and asked for an answer within eleven days. On November 20, 1990, Mr. Jones sent a letter to the Court asking for help in solving the problems.

On November 27, 1990, the suit was dismissed with prejudice. A "Motion For Reconsideration" was denied. The appeal was dismissed. Mr. Jones stated in his affidavit of response that avoiding the Circuit Court of Harrison was of primary importance because of the history of inadequate jury verdicts. He stated that Ms. Jones' husband assisted in investigations concerning the sequence of events and probable causes of the accident since the other party to the accident was driving a truck, as did Mr. Jones. A belief was formed that a defective fifth wheel assembly caused or contributed to the accident and, therefore, the manufacturers etc. had to be made parties; hence, the John Doe defendants. Mr. Jones filed a complaint as did the insurance carrier. He stated that upon receipt of the September 19,1988, letter from Judge Waters, he contacted the Court. He learned no possible circumstance existed under which Judge Waters would rule that the possibility of John Doe defendants being nonresidents of Arkansas was sufficient to confer federal jurisdiction. Mr. Jones stated that while he did not intend to appeal this ruling, the insurance company did and they would apprise him of the outcome. Mr. Jones then prepared a separate complaint for filing in Boone County. While researching, he received information that there had been a recent change in law regarding John Doe defendants and subject matter jurisdiction and that Judge Waters' law clerk had presented this information at a recent seminar. However, efforts to obtain more specific information was fruitless.

Knowing time was growing short, Mr. Jones refited in Federal Court, and received the November 7, 1990, letter which was followed by a letter of dismissal with prejudice. Mr. Jones stated in conclusion that he was initially retained

by Mr. Jones and much information came from him, and decisions were made by him and confirmed by Mary Jones. The attorney stated that Ms. Jones wanted to be sure that most of any monies generated were received by her, and not her husband. The lawyer stated that on New Years Eve, 1990, Mr. Jones, irate and upset, called him and fired him. Attorney Jones then "stopped all proceedings and waited." He stated that when the Eighth Circuit Court of Appeals contacted him, he advised that the Jones' had hired another attorney.

JAMES F. SWINDOLL James F. Swindoll, Little Rock, Arkansas was issued a letter of caution for violation of Model Rule 7.2(d) as a result of a complaint before the committee regarding an advertisement in the yellow pages. The Complaint reflected that the January 1993 Southwestern Bell Yellow Pages for Little Rock and orth Little Rock, page 65, contained an advertisement for Accidental Injury and Disability Associates, P. A. The advertisement, although listed under the attorney's section of the Yellow Pages, did not include the name of any attorney responsible for the advertisement. Mr. Swindoll is one of the three owners of Accidental Injury and Disability Associates, P. A. Mr. Swindoll's affidavit of response indicated that Accidental Injury and Disability Associates, P. A. is a professional corporation existing under and by virtue of the laws of the State of Arkansas and is owned by Mr. Swindoll, H. L. Slate and Steven Owings. After the initial orga.nization, he along with the two other owners, agreed that an advertisement would be placed in the Little Rock Southwestern Bell Yellow Pages. A representative of the Southwestern Bell Yellow Pages was contacted and drafted a "business card" advertisement to announce the availability of legal services from the professional corporation.

The Southwestern Bell Yellow page customer service representative drafted and submitted for approval a proof of the advertisement as it appears. Mr. Swindoll stated that regrettably, he did not consult the Model Rules to determine whether the proposed advertisement is in violation of Rule 7.2 of the Rules of Professional Conduct. Subsequent to the receipt of the complaint, the telephone number of Accidental Injury And Disability Associates, P. A. was disconnected. Mr. Swindoll stated that he never intentionally violated the Model Rules and took immediate steps to comply with the Rules when the violation was brought to his attention.

H. L. SLATE H. L. Slate, Little Rock, Arkansas, was issued a letter of caution for violation of Model Rule 7.2(d) as a result of a complaint before the committee regarding an advertisement in the yellow pages. The complaint reflected that the January 1993

Southwestern Bell Yellow Pages for Little Rock and North Little Rock, page 65, contains and advertisement that, although listed under the attorney's section of the Yellow Pages, did not include the name of any attorney responsible for the advertisement. According to the records of Southwestern Bell Yellow Pages, Inc., Mr. Slate executed the application for directory advertising for Accidental Injury And Disability Associates, P. A. Mr. Slaters affidavit of response indicated that Accidental Injury And Disability Associates, P. A. is a professional corporation existing under and by virtue of the laws of the State of Arkansas and is owned by himself, James F. Swindoll and Steven A. Owings. After the initial organization, Mr. Slate, along with the two other owners, agreed that an advertisement would be placed in the Little Rock Southwestern Bell Yellow Pages.

Mr. Slate contacted a representative of the Southwestern Bell Yellow Pages and requested that he draft a "business card" advertisement to announce the availability of legal services from the professional corporation. The Southwestern Bell Yellow Page customer service representative drafted and submitted for approval a proof of the advertisement as it appeared. Mr. Slate stated that, regrettably, he did not consult the Rules of Professional Conduct to determine whether the advertisement is in violation of Rule 7.2 of the Model Rules.

Subsequent to the receipt of the complaint, the telephone number of Accidental Injury And Disability Associates, P. A. was disconnected. Mr. Slate stated that he never intentionally violated the Model Rules and took immediate steps to comply with the Rules when the violation was brought to his attention.

STEVEN A. OWINGS Steven A. Owings, Little Rock, Arkansas was issued a letter of caution for violation of Model Rule 7.2(d) as a result of a complaint before the committee regarding an ad in the yellow pages. The Complaint reflected that the January 1993 Southwestern Bell Yellow Pages for Little Rock and North Little Rock, page 65, contained an advertisement for Accidental Injury And Disability Associates, P. A. The advertisement, although listed under the attorney's section of the Yellow Pages, did not include the name of any attorney responsible for the advertisement. Mr.

Owings is one of the three owners of Accidental Injury And Disability Associates, P. A. Mr. Owings affidavit of response indicated that Accidental Injury And Disability Associates, P. A. is a professional corporation existing under and by virtue of the laws of the State of Arkansas and is owned by Mr. Owings, H. L. Slate and james F. Swindoll. After the initial organization, he along with the two other owners, agreed that an advertisement would be placed in the Lillie Rock Southwestern Bell Yellow Pages. A representative of the Southwestern Bell Yellow Pages was contacted and drafted a "business card" advertisement to announce the availability of legal services from the professional corporation.

The Southwestern Bell Yellow page customer service representative drafted and submitted for approval a proof of the advertisement as it appeared. He stated that, regrettably, he did not consult the Model Rules to determine whether the proposed advertisement was in compliance. Mr. Owings conceded that the advertisement was in violation of Rule 7.2 of the Model Rules of Professional Conduct. Subsequent to the receipt of the complaint the telephone number of Accidental Injury And Disability Associates, P. A. was disconnected. Mr. Owings stated that he never intentionalJy violated the Rules took immediate steps to comply with the Model Rules when the violation was brought to his attention.

ALAN JOSEPH NUSSBAUM Alan joseph Nussbaum, Little Rock, Arkansas, was issued a letter of caution for violation of rule 7.2(d) as a result of an advertisement in the Arkansas DemocratGazette. The Complaint reflected that the Arkansas Democrat-Gazette, on numerous occasions, contained an advertisement in the lassified Advertising section for Disability Associates. The advertisement did not include the name of at least one lawyer responsible for its content. The telephone number listed in the ad was found to be the same as Mr. Nussbaum's office. In his affidavit of response, Mr. Nussbaum respectfully apologized for the unintentional oversight in failing to identify the attorney responsible for the advertisement. He assured the Committee that he had taken steps to see that all advertising now includes his name as responsible attorney.

28

ARKANSAS LAWYER

AUTUMN 1993

ANGELA Y. BAXTER Ms. Angela Y. Baxter, Pine Bluff. was issued a letter of reprimand for violation of Rules 1.3. 1.4(a) and 8.4(d) as a result of a complaint filed by Myron and Eula Burgess. In their affidavit, Myron and Eula Burgess stated that in October, 1990. they hired Ms. Baxter to secure the adoption of Mrs. Burgess' daughter by Mr. Burgess. Ms. Baxter told them that they would receive copies of filed documents and a court date would be set approximately 4S - 60 days away. Mr. and Mrs. Burgess never received anything from Ms. Baxter. When they phoned for progress reports they received a variety of responses and were told they should hear something in the next few days. A home study was required, and since the clients lived in Maryland, Mr. Burgess, at Ms. Baxter's request, sought out procedural information from Marylnnd Social Services. He was informed that a court order was needed and he related that information to Ms. Baxter. The clients stated that although Ms. Baxter claimed to have sent an order to them by way of certified mail, they have not received it.

At the time of the formal complaint, April 12, 1993, the adoption remained uncompJeted.

For her response, Ms. Baxter stated that on October 10. 1990, a petition for adoption was filed and that, while no paperwork was sent to the clients, her impression was that they did receive a copy. Ms. Baxter stated that because they lived in Maryland, getting a home study done was a problem. She added that she never received any written information about a home study from the clients, and that she was out of the office often.

Further, Ms. Baxter stated that the court order to which Mr. and Mrs. Burgess refer is sealed in the court's fiJe and, therefore, she cannot explain why they believe a copy would have been delivered to them.

Finally, while Ms. Baxter admitted and denied some of the allegations, she explained that, as a result of some adverse effects of prescription medicine, her memory during that time period was unclear, but she offered to attempt to finalize the adoption.

Angela Y. Baxter, Pine Bluff, Arkansas, following a public hearing on july 10, 1993, was issued a letter of reprimand for conduct violating Model Rules 1.1, 1.3, 3.2, 5.5(b), 8.4(c) and 8.4(d) as a result of a complaint filed by Mr. Andrew Goodloe.

Mr. Goodloe's affidavit of complaint and

his testimony indicated that in October of 1991, he hired Ms. 8axter to represent him ill an attempt to get custody of his son.

Mr. Goodloe paid $500.00 and was told that the fees would cover the filing of the petition for custody and one appearance in court. On October 16, 1991, a Motion For Change Of Custody was filed, however, that was the only document M.r.

Goodloe ever received from the firm. Mr. Goodloe's affidavit reflected that on numerous occasions he called and spoke with Ms. Pam Baxter about the status of the case and that he was always told that it was being worked on. Mr. Goodloe thought that Pam Baxter was a licensed attorney. Mr. Goodloe was subsequently informed that a hearing was set for November 30, 1992. Mr. Goodloe contacted Ms. Baxter's office on November 27 and was informed by Pam Baxter that everything was set. On November 30, 1992, Pam Baxter informed Mr. Goodloe that the hearinR was cancelled. Mr. Goodloe decided to pick up his file and to hire a new attorney. Mr. Goodloe then discovered that his file contained a letter from the judge dated july 15, 1992, to Ms. Baxter. Since the child's natural mother had died after commencement of the action, Ms. Baxter was instructed to amend the petition to reflect the changed parties or the case would be dismissed. No amended petition was filed and there was no notation in the record of a hearing to be held November 30, 1992.

Although Ms. Baxter failed to submit a response to the complaint after being duly served, she timely requested a de novo hearing pursuant to Section 5E(3), Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Ms. Baxter's testimony admitted receipt of the judge's july 15, 1992, letter regarding the need for an amended petition due to the death of the minor's natural mother. Further, she acknowledged the failure to file the petition. Ms. Baxter testified that, preceding and during her attorney/client relationship with Mr. Goodloe, she was suffering from serious medicaJ problems that necessitated several hospitalizations within and outside the State. Some of the medication prescribed for her treatment had severe adverse effects and resulted in bipolar depression. This manic-depressive condition involved cyclic mood switches, sometimes rapid and dramatic. These interfered with or diminished her ability to properly attend to her professional duties. Ms. Baxter stated that subsequent diagnosis and treatment resulted in a change of her medication. She no longer

suffers from severe episodes and the disorder is under control. Additionally, Ms. Baxter added that at no time and in no way did Pamela Baxter present herseU as an attorney. Finally, Ms. Baxter noted that Mr. Goodloe's money has been refunded.

Ms. Angela Y. Baxter, Pine Bluff, Arkansas, following a public hearing on July 10, 1993, was issued a letter of reprimand for conduct violating Model Rules 1.3, 1.4(a), and 1.16(d) as a result of a complaint filed by Mr. Donald F. Mopkins. In his affidavit, Mr. Mopkins stated that he retained Ms. Baxter on or about July 20, 1991, to assist him in obtaining court ordered blood tests for determination of paternity. A fee of $400.00 was agreed upon and $200.00 was to be paid prior to filing the appropriate pleadings. For the initial consultation, Mr. Mopkins paid $30.00 which was to be applied to the fee. The client advised that because of his child support payments and other financial considerations, he would have to pay the fee in installments.

Subsequently, he remitted an additional $190.00. Having satisfied the requirement of paying $200.00 to initiate legal action, Mr. Mopkins became concerned about h.is legal matter because he could not ascertain that any action was being taken.

He made numerous attempts to contact Ms. Baxter, but was unsuccessful. After receiving no response to two letters he WTote Ms. Baxter requesting a refund of his fee, the complainant sent her a demand letter by certified mail on January 2, 1992. She failed to reply to that letter and Mr. Mopkins filed a small claims action against her in which he obtained a judgment. Although Ms. Baxter failed to submit a response to the complaint after being duly served, she timely requested a de novo hearing pursuant to Section 5E(3), Procedures of the Arkansas Supreme Court Regulating Professional Conduct of Attorneys at Law. Her testimony admitted undertaking representation of Mr. Mopkins and the fee arrangement as he stated. Ms. Baxter stated that due to the client's payment of the fee by small installments a bookkeeping error occurred and she was unaware of payment of the agreed retainer. She was suffering from serious medical problems that necessitated several hospitalizations within and outside the State. Some of the medication prescribed for her treatment had severe adverse effects and resulted in bipolar depression. This manic-depressive condition involved cyclic mood switches, sometimes rapid and dramatic. These mood changes often affected her thinking,

judgment, behavior, and interfered with or diminished her ability to properly attend to her professional duties. Ms. Baxter stated that subsequent diagnosis and treatment resulted in a change of her medication. She indicated with the new medication and regular counseling that she does not now su Her from severe episodes and that the disorder is under control. Additionally, Ms. Baxter presented a cancelled check reflecting satisfaction of Mr. Mopkins' judgment.

Ethics Advisory Opinions Arkansas Judicial Disicipline Advisory Opinion 93-04 (August 23, 1993) The Arkansas Judicial Ethics Committee issued an advisory opinion based on the Code of Judicial Conduct adopted by the Supreme Court on July 5, 1993. The opinion held it would be a

violation of the code for a judicial campaign surplus fund to exist. The questions asked; "can a campaign committee for a judge maintain a surplus that does not exceed the yearly salary of the judge,"; and "can a campaign committee dispose of existing surplus funds, or must it distribute funds to contributors or to the State Treasurer per the new code."

Canon 5 C(2) of the 1993 Code of Judicial Conduct provides in part; "Any campaign fund surplus shall be returned to the contributors or tuned over to the State Treasurer as provided by law. The opinon states, "Canon 5 C(2) is short, concise, unambiguous and without vague or conflicting terms. Furthermore, there are no exceptions, exclusions or limitations of any description to its mandated message that it is a violation of the code for a judicial campaign surplus fund to exist."

Members of the Arkansas Bar Association are cordially invited to the Investiture of

BILL WILSON as United States District Judge Monday, October 25, 1993 9:30 a.m.

Courtroom 4D United States Courthouse 600 West Capitol Avenue Little Rock, Arkansas Reception immediately following the Investiture Philander Smith College Administration Building Lobby Little Rock, Arkansas

VINCENTW. FOSTER, JR. Some Reeo lleetions

By Phillip Carroll I think it was in the early 1970's that I took Vince sailing on Lake Maumelle. Diane and I owned a Windmill in those days, a skittish little 15-foot sloop that we kept on a trailer at the sailing club. I thought I had learned to handle it, and I wanted to demonstrate to Vince my newly acquired skiUs in mastering the winds. He was a landlubber but anxious to learn. One Sunday afternoon, we drove to the lake where r hooked the trailer to my car and backed the boat into the water. Vince held the lines at the dock while I reparked the car. I noticed that some of Little Rock's more experienced sailors were standing around, and I hoped the winds would cooperate so we could quickly move out on the lake without revealing our lack of the more sophisticated techniques in tacking and dodging a swinging boom. As I walked back to the dock, Vince decided it was time for him to mount up. ("Mount up" isn't exactly a nautical term, is it?) r suppose Vince was accustomed to some broad bottomed boat he and his father has fished in at Millweed Lake near Hope. He stepped aboard, and I and about twenty others watched in astonishment as the mast tipped crazily and the boat capsized over to starboard pitching the nattily dressed Vince Foster into the lake. Talk about life's embarrassing moments! Vince's introduction to sailing was to ignominiously capsize right there at the dock in front of a howling group of old salts. AliI could think of was to yell, "Vince...save the beer!"

What was it about this young man that made me like him so much?

How did he attract so many friends?

Why did he rise so quickly in his profession? He furnished the answers to these questions in the

commencement address he gave to graduating law students at the University of Arkansas in FayetteviUe on May 8, 1993: "You will be evaluated by your product, your energy, your temperament

and your backbone. The reputation you develop for intellectual and ethical integrity will be your greatest asset or

your worst enemy. You will be judged by your judgment...Practice law with consideration and courtesy. 0 matter how righteous the cause or clear your victory, assure that your adversary with

hi or her client leaves with dignily...Stretch your talents, grasp

beyond the closest branch, take a risk, stick your neck out, speak your mind, challenge the status quo and conventional wisdom. Do not just accept

responsibility. Chase it down:路 Vince came with Lisa and Lisa came with Vince. Two peas in a pod. My favorite lines in the commencement address are when Vince recognized the role Lisa played in his career:

'1 pause. Three weeks

ago my wife, Lisa, and I celebrated our 25th anniversary, and it was here in Fayetteville where we celebrated our first.

Like many in this audience, she began by

putting me through law school. For 22 years, she always encouraged me to persevere and aim higher. She has been

my editor, my jury consultant and my besl friend. I wish for each of you a Lisa.

Vince's advice that the victor in an adversary proceeding should always assure that the opposing lawyer and clients leave with dignity is a particularly poignant note. Some of Vincent's greatest admirers were his adversaries in litigation. Bill Wilson captured this sentiment most vividly in recalling a passage from Tom Sawyer in which Tom's playmates, mistakingly believing he is lost in the Mississippi River, get together to talk in revere.nt tones of how Tom did wand-so. Twain wrote: "...One poor chap, who had no other grandeur to offer, said with tolerably manifest pride in the reDlt!mbrance: 'Well, Tom Sawyer he licked me once.'

But that bid for glory was a failure. Most of the boys could say that. and so thai cheapened the distinction too much ..."

Vince and I practiced law together

for 22 years. How could time pass by so quickly? I loved Vince Foster. He was all that one could ask for in a friend. He was one helluva lawyer too.

Vince and Lisa's firstborn is another Vincent except the younger model comes with flaming red hair.

He is my Godson. Twenty-one years ago, I held him in my arms at his Baptism and acted as his surrogate in taking his vows of allegiance to our Almighty God. Today he is a handsome young man, soon to graduate from T.C.U. (Did I really hold that big man in my arms?)

When I see him now, I always ask him if his spiritual life is in good shape. He laughs and assures me that there is nothing to worry about. At least, he knows that I take my Godfathering duties seriously. Last Christmas, young Vincent stopped by our house to bring me a present. He sat and talked with me for well over an hour. I marveled at the maturity and intelligence of this bright and interesting young man. We share an affinity for bright bow ties, and we thumb our noses at critics who say they are a sign of wimpishness.

Remember his father's admonition, "Challenge the status quo and conventional wisdom."

Laura was child number two. She started at Vanderbilt but she has transferred this year to the University

of Arkansas. Let me confess - I am partial to little girls. I had three of my own. Laura was one of the sweetest little girls I have ever known. Through the years whenever we encountered. one another, Laura always rushed up and gave me a warm and unabashed hug. Not many of our friend's children do that. Laura just makes me feel warm all over.

Today, like her mother, she is a blond knockout. Chauvinist pig!

Let me correct that - she's a lovely young woman. I read about unwanted children who grow up unhappy and discontent and who get involved with drugs and crime.

Then I think of Laura, beautiful Laura. Oh, if only this world had more Lauras.

The youngest of the Foster dan is Brugh, a senior this year at Catholic High School. Whenever I look at Brugh, I see Vince. It's not a facial or bodily resemblance. It's Brugh's manner and demeanor. He's quiet and just a little bit shy, but there are frequent flashes of levity in his eyes. I watched him sit with his arm around his mother the night after his father died, and I knew that Brugh had grown up overnight and was ready to assume his duties as the man of the house in the year ahead.

These three children say all there is to say about the homeIife of Vince and Lisa Foster. There was love in abundance in the Foster home. Vince and Lisa found the secret to raising children as decent and responsible human beings.

That's a success story that eludes many of today's families, and it exceeds all the things you ha ve read and heard about the accomplishments of Vincent Foster, Jr., the lawyer.

I was always proud of Vince because he was so eclectic in his choice of professional and

community activities. He was Chair of the Board of the Arkansas Repertory Theater and steered that organization through the funding, construction, and opening of its new facility in downtown Little Rock. He was President of the Legal Services Board of Arkansas, and he started the process which led to the creation of VOCALS (Volunteer Organization for Central Arkansas Legal Services).

Pulaski County attorneys can discharge their obligation to provide free legal services to the poor either by paying $250.00 a year to VOCALS or by agreeing to take a minimum of three cases a year helping people who need but cannot afford to pay a lawyer. Vince never bought his way out. He knew that despite his success as a commercial litigator, he needed to keep his hand in as a counselor for the downtrodden and the obscure.

He was President of the Pulaski County Bar Association in 1981. I think he was a cinch for election as President of the Arkansas Bar Association, a job for which he had quietly announced his candidacy but a goal which was laid aside when he was called to duty to serve as Deputy Counsel to the newly elected President of the United States.

The Arkansas Bar Foundation selected Vince as the outstanding lawyer of Arkansas in 1993. He could not come home to receive the award.

He wrote: "As fate would have it, at the time of the award ceremony I will be

involved in interviewing a leading candidate for nomination to the United Slates Supreme Court. This will be the first appointment to the Supreme Court by a Democratic President in twenty-six years. My role in this historic appointment is not a responsibility which I can delegate nor an opportunity which I can pass up."

I read that someone compared Vince to Cary Grant. WelJ...perhaps.

But Cary Grant often played the role of a buffoon. Remember "1 Was a Male War Bride"? Vince was never a comic. He wasn't the life of the party, but you always knew he was there.

People gathered around him because he was good company. He was interesting. He would listen. He didn't engage in small talk.

Sometimes Vince and I would ride together to the office and back home again in the evening and never exchange a word. It was comfortable to be in his presence. When he spoke, you knew he had given some thought to what he was about to tell you. He didn't brag, although he had plenty to brag about. He didn't have to. His excellence oozed out of his pores.

When he spoke, people listened.

I'll never forget the day in December of last year when he came into my office and closed the door behind him. 0 hate moments like that. It's like getting a phone call in the middle of the night, or hearing a siren when one of your daughters is

As they say, 'The wind blows hardest at the top of the mountain.'''

Sometimes I watch the old movies on A & E. I can drain my oversized tear ducts in private that way. In "The Bridges at Toko-Ri," WiUiam Holden plays the role of Lt. Brubaker, a lawyer and Navy Reserve pilot who is forced to give up his law practice and his home when he is recalled to duty in the Korean war. Grace Kelly is his beautiful wife who brings their two young daughters to visit when Brubaker's aircraft carrier docks for a shOrlliberty in Japan. In the end, Brubaker bombs and destroys the strategic bridges of the enemy, but his plane is hit and he is forced to make a crash landing in enemy territory. He is killed in a muddy ditch by communistlroops, Fredric March plays the part of an Admiral who receives word of Brubaker's death; and, on the bridge of the aircraft carrier, asks the question that keeps going through my mind, "Where do we get such men? They leave this ship and they do their job. Where do we get such men?/J

out on a date. You sense impending disaster, and you pray that your worst fears won't become a reality.) I knew Vince had been spending long hours helping plan the Presidential transition, but it never occurred to me that he would leave the Rose Law Firm. Then he dropped the bomb on me. He said he was leaving to go to Washington. I was devastated. I completely lost my cool and blurted out, "Damn! I wish Bush had won!"

Phillip Carroll It was about the worst thing I could September 9, 1993 say. Vince looked hurt, and he must have thought I was angry mr-~~~~-----", ..r-,," with him.

After he left I wrote him and apologized. I told him that he had no more right to refuse to go than I did when I was drafted in World War I] or when I was recalled to active duty in the Korean conflict.

When your country calls, you don't shirk your dutyyou go! I held on to the hope that someday he would come home and rejoin the Firm. It never occurred to me at the lime that he would become a casualty.

Vince wrote back on March 4th. His letter said: ''The pres ure, financial sacrifice, and family disruption are the price of public service at this level.

8th Cir -t Opinion Somma written

~

Dean Howard E路';ji:y"iG of the UALR Sc.. . . . "-'' ' ' . .

Now, for only $1. ear (52 issues), those attorneys and, '~\ ssistants who practice outside Pulaski County ~ilr et a Friday-only subscription to The Daily Re rd tewide "LAW EDITION" without paying ere lar $95 daily subscription rate. ch riday issue includes: Supreme Out( d Court of Appeals regular syllabi, statewide nl ; , .oration filings and statewide bankrup~ci.es, featunng legal .... onal, legal commentary, regular AG OpinIOnS, ti ps a~d he pful information for the Arkansas law office.

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DAILY RECORD Daily Newspaper of Law and Business Information since 1925

Are there some problems that legislation can't solve?: A primer on hate crime legislation

By Thomas M. Carpenter The problem presents itself in several fashions. A person threatens to "blow you away, niggerl" A cross is burned in an African-American's front yard. A gay couple is accosted after leaving a dinner club. Swastikas are painted on headstones in a Jewish cemetery. Or, after watching a movie about the violent history of racism in Mississippi, a young African-American male asks his friends, "Do you all feel hyped up to move on some white people... You all want to fuck somebody up? There goes a white boy; go get him. "I These

are

hate

- - - - - - - - - - - - - - - - - . . , tensions, and lead to reprisals

These

are

by others in the community,

crimes in which a

thereby creating the potential

person

for escalating violence and

crimes.

becomes a

victim merely because

turmoil."3

of the individual's

In the last several months,

race, religion, sexual

our Nation has continually

orientation, ethnicity

been assaulted with grotesque

origin. 2

examples of human savagery.

And, these crimes are

In Bensonhurst, a New York

extremely serious.

neighborhood, a group of

or national

Such crimes are

Italian youths murdered an

especially problematic

African-American

because "[tlhey can

visiting friends in the area. In

have

special

Florida, an African-American

and

stockbroker on vacation was

psychological impact

captured and set on fire by

on the victim and

whites. [n California, during

his/her community,

rioting after the Rodney King

exacerba te

racia I,

state court verdicts, a white

religious or ethnic

driver was pulled from his

a

emotiona I

34

ARKANSAS LAWYER

AUTUMN 1993

youth

automobile and savagely attacked by African-

Minnesota Supreme Court's ruling that limited the

Americans involved in the mob reaction to the verdicts.

application of this ordinance to "fighting words," as

Also in California, a sailor stomped a fellow sailor to

defined in Chaplinsky v. New Hampshire," but struck the

death because he was gay.'

ordinance because it was underinclusive. The ordinance

These and other shocks to the conscience of a civilized

was unconstitutional because it applied only to fighting

and orderly society based upon the rule of law brought

words on topics that were otherwise protected by the

a cry for new legislation to deal with the problem. From

First Amendment.

City Hall to Capitol Hill, requests have been made for

To do so, Justice Scalia first noted that, while

legislation to protect those immediately victimized by

consistent with the First Amendment, government

these crimes. But, as this Nation learned when the Nazis

could limit certain speech -

wished to march in Skokie, Illinois, in the mid-1970's,

words, libel ~uch limitation does not change the fact it

our First Amendment freedoms limit our legislative

is still speech. In other words, despite the fact a

response to repulsive actions.'

government can restrict obscenity, obscenity is a form of

To be sure, cities and states are free to criminalize

e.g., obscenity, fighting

speech.J 2

acts against individuals. But, governments are not free,

The Minnesota ordinance failed because it only

consistent with the First Amendment, to prohibit

regulated a portion of proscribable speech. It proscribed

"messages of 'bias-motivated' hatred and in

only the category of "fighting" words

particular... messages 'based on virulent

directed at a defined category of

notions of racial supremacy' ."6 When is a

individuals. This action, the Court

hate crime a message and when is it an act?

reasoned, is the equivalent of a law stating

The answer to this question also provides

that obscenity is illegal only if it also

insight as to what actions governments can

criticizes the government. While it may be

take to curb these offenses.

proper to restrict all fighting words, it is

R.A. V. v. City of St. Pau(l is the first case

not proper to use the doctrine to restrict

on hate crime legislation to be reviewed by

just some fighting words. The only

the U.s. Supreme Court. This prosecution

governmental "interest distinctively served

arose after the burning of a crude cross in

by [such a] content limitation is that of

the front yard of an African-American

:;;;"'---.1 displaying the city council's special

family. The ordinance alleged to have been violated

hostility towards the particular biases thus singled

prohibited certain acts "which one knows or has

out."13

reasonable grounds to know arouses anger, alarm, or

The Court agreed that the Minnesota ordinance

resentment in others on the basis of race, color, creed,

addressed a compelling state interest. But, this fact is

religion or gender ... ."8 The Minnesota Supreme Court

not the talisman that permits governmental regulation

denied a challenge that the ordinance was overbroad

of speech. Regulation is permitted if and only if it is

because "the ordinance is a narrowly tailored means

"reasonably necessary" to achieve a compelling state

toward accomplishing the compelling governmental

interest. 14 The Court found that a truncated application

interest in protecting the community against bias-

of the "fighting" words doctrine only to one form of

motivated threats to public safety and order."

speech was not reasonably necessary to meet this

9

Despite

disagreement as to the rationale, the U.S. Supreme Court reversed by a unanimous vote.

Five Justices signed an opinion written by Justice Scalia. tO

In this opinion, Justice Scalia accepted the

interest.

The legislative and judicial reaction to R.A. V. was admittedly one of confusion. It appeared that governments were estopped from taking any actions to

prevent or punish hate crimes, or even to stop actions

sentence. 2I While a defendant's general biases cannot be

from which violence was a reasonably foreseeable

considered in setting sentence,22

result. Indeed, other opinions of the Court had severely

particular defendant is permissible. 23

limited the ability of a municipality to recoup the

statute met this latter test.

massive costs for public safety occasioned by hate oriented demonstrations. IS While

the

Minnesota

pecific bias toward a The Wisconsin

In other words, the fact that a defendant is a white supremacist is not relevant in determining a sentence

ordinance

sought

for battery. But, the evidence is relevant if the

unsuccessfully to limit certain actions, other states

defendant's victim is an African-American and the

adopted statutes that permitted the enhancement of

evidence shows that the particular crime was an

penalties for existing crimes based upon the "hate"

expression of the defendant's racial animus.

character of the particular uffense.

ole lhat R.A. V.

The Court drew a distinction between the Minnesota

expressly stated that burning a cross on someone's lawn could be punished under a variety of criminal statutes. 16

ordinance -

directed at expression -

But, Justice Scalia's opinion did not mention whether

conduct may be punished more severely because it is

the enhancement of criminal penalties for these offenses

"thought to inflict greater individual and societal

was a constitutional alternative.

harm."24

Wisconsin statute -

and the

directed at conduct. Bias-inspired

Based upon the rationale in R.A. V.,

Finally, the Court rejected the notion

some states struck penalty enhancement

that the Wisconsin statute created a

hate crime statutes.17 To answer whether

"chill:i.ng" effect on First Amendment rights.

penalty enhancement suffered the same

Tn fact, the Court treated this argument as

constitutional infirmities as the Minnesota

silly. "We are left, then, with the prospect of

ordinance, the U.S. Supreme Court

a citizen suppressing his bigoted beliefs for

reviewed the Wisconsin

statute. IS

fear that evidence of such beliefs will be

The facts in Wisconsin v. Mitchell were

introduced against him at trial if he

mentioned above. Some African-American

commits a more serious offense against

teenagers, after viewing the film Mississippi

person or property. This is simply too

Burning decided to assault a white boy, to

......

speculative a hypothesis .... "25

;;;;............;;....-

beat him severely, and to steal his tennis

So, penalty enhancement statutes can

shoes. The victim was rendered unconscious and lay in

be enacted by government as a means of addressing

a coma for four days.19 The defendant was convicted of

hate crimes. But, while this is an arrow in an already

the assault. Under the Wisconsin enhancement statute,

full law enforcement quiver, it is a potentially

the criminal penalty was increased. Mitchell appealed,

dangerous one. The issue of hate crimes has been with

arguing that the penalties were a legislative attempt to

us throughout recorded history. It has even been

punish what the government had deemed bigoted

suggested that the Bible encourages the concept of racial

thought. The Wisconsin Supreme Court agreed, but the

superiority.Z6 Yet, whether there are hate crimes, what

U.S. Supreme Court unanimously reversed and

form they take, or whether government should react is

rendered a single opinion.

not really the question posed by this article. The real

First, the Court noted that physical assault is not, under any circumstances, "expressive conduct protected

question is whether there are some issues that legislation cannot solve. This issue is one.

by the First Amendment."zo Then the Court noted that

Indeed, while the adoption of penalty enhancement

sentencing judges have traditionally been able to

statutes may be politically desirable for elected officials,

consider a defendant's motives in determining

there is a danger that such action will lead to

36

ARKANSAS LAWYER

AUTUMN 1993

undesirable results. Penalty enhancement is not the new solution to an old problem that has grown to frightening proportions. The danger is that too many people will believe too quickly that this problem has been solved because there is a statute and,

grounds to know arouses anger, alarm, or resentment in others on the basis of race, color, creed, religion or gender commits disorderly conduct and shall be guilty of a misdemeanor."

9In re Welfare of R.A.V., 464 N.W.2d 507, 511 (Minn.l991).

10 The five Justices were Chief Justice Rhenquist, and Justices Scalia, Kennedy, Souter and Thomas.

11 113 5.0. at 2542; see also, Chapfinsky v. New Hampshire, 315

unfortunately, will ignore that penalty enhancement is

U.S. 568 (1942). In ChapUnsky, the U.S. Supreme Court noted that

merely an emergency treatment of one symptom of an

"fighting" words are "those which by their very utterance inflict injury or tend to mote an immediate breach of the peace. 315 U.S. at

extremely serious condition.

The answer? All the writings by and about Yahweh,

572. There is a serious question as to whether "words which intend to inflict injury" alone may be regulated pursuant to this exception. See

Jesus, Mohammed, Buddha, Vishnu, and their prophets

Note, Demise of the Cltapfillsky Figlltillg Words Doctrine: All Argume,,' for

suggest a goal -

its Intennent, 106 Harv. L. Rev. 1129 (1993).

to love one another -

but none of

them identify a legislative means to fulfill that goal. The reason is that the answer is not in the political will -

it

12 R.A. V., 112 S.Ct. 2543.

13 Id., 112 S.Ct. at 2550 (explanation added).

14Id.

15 See Forsyth County v. Natiot/alist Movement, 112 S.Ct. 2395 (1992).

is a matter of individual diScipline.

16 R.A.V., 112 S.Ct. at 2541, n.1. These crimes included terroristic

threatening (Minn.5tal. § 609.713(1) (1987);

arson (§ 609.563);

and

criminal damage to property (§609-595ISupp.I992J).

Tom Carpenter is the City Attorney for the City of Little Rock, Arkansas. This article is one of several that he has contributed to The Arkansas Lawyer.

17 Stale v. Wyant, 597 N.E.2d 450, 458-59 (Ohio 1992);

State v. Mitchell,

485 NW.2d 807, 814-15 (Wis. I 992), rev'd

Wisco'lSi" v. Mitchell, supra; but see, State v. Plowman, 838 P.2d 558, 564-

65 (Or.1992)(upholding Oregon statute against First Amendment

challenges).

18 Wis.Stat. §939.645 (1989-90) which provides "(1) If a person

Endnotes

does all of the follOWing, the penaJties for the underlying crime are

1 Wisconsin v. Mitchell, 113 S.Ct. 2194, 2196-7 (1993).

increased ... (a) Commits a crime

2 Hate Crimes Statistics Act of 1990, Pub.L. 101-275, §(b)(/), 104

person against whom the crime

(b) Intentionally selects the

is committed or selects the

Stat. 140 (990). Note that while sexual orientation is noted, gender

property which is damaged or otherwise affected by the crime ...

alone has not yet been included in the definition. See also Wis. Stat. §

because of the race, religion, color, disability, sexual orientation,

939.645 (1989-1990), as amended.

national origin or ancestry of that person or the ovvner or occupant of

3 Michael Lieberman, The Law v. Violent Bigotry and AntiSemitism:

Possibilities

and

Limitations

1-2

(April

21,

that property."

19 Mitchell, 113 S.Ct. at 2196-97.

1993)(unpubLished manuscript, on file with the National Institute for

20 Id., 113 S.Ct. at 2199; see also RDberts v. United States Jaycees, 468

Municipal Low Officers), For a discussion of the types of emotional

U.S. 609 (1984); NAACPv. Claiborne Hardward CD., 458 U.S. 886 (1982).

harms that hate crimes can cause, see Richard Delgado, Words ThaI Wound: A Tort Action for Racial Insults, Epithets, Qnd Name·Calfing, 17

Harv. c.R.-e.L. L. Rev. 133, 136-39 (1982).

4 The problem is certainly not limited to the United States. For and brutalized as a part of "ethnic cleansing." For a fascinating before the term was used -

22 Dawson v. Delaware,

112 S.Ct. 1093 (1992) (sentencing judge

may not consider that defendant was a member of a white

example, in Bosnia, women of one religion are systematically raped discussion of how "hate crimes" -

21 Id.

are

supremacist group during capital sentencing hearing since the evidence only established the defendant's abstract beliefs).

23 Barclay v. Florida, 463 U.s. 939 (1983) (sentencing judge could

consider racial animus towards victim as an aggravating factor).

really a nationalistic form of terror over a despised group without real

24 Mitchell. 113 S.Ct. at 2201.

power, see Hannah Arendt, "Antisemitism" in The Origins of

25 td.

Totalitarinism 3-120 (1973) 5 See Collin v. Smith, 578 F.2d 1197 (7th Cir.) stay det/ied, 436 U.S.

953 (1978).

26 Some hate groups have quoted the following as God's grant to Caucasians of dominion over blacks. "May God extend }apheth's bounds, let him dwell in the tents of Shem, may Canaan be their

6 R.A.V. v. City of St. Pout, 112 S.Ct. 2538, 2548 (1992).

slave."

71d.

Gen. 9,27 (NEV). (emphasis added)

8 S1. Paul, Minn. Legis.Code §292.02 (1990) which provides: "Whoever places on public or private property a symbol, object, appellation, characterization or graffiti, including, but not limited to, a burning cross or Nazi swatstika, which one knows or has reasonable

Which is worse: Stairs into public buildings or federal laws that force sensitivity?

By Philip E. Kaplan

It is unfortunate that titles or questions that posit hypothetical and invalid constructs are so favored in the public debate, but contribute so little to the progress of community consensus and understanding. Does it do any good to construct a scale that compares, from 1 to 10, (1 being the most awful and 10 being the most wonderful) our failure to have provided public access to the disability community with the erroneous characterization of the law as one that forces sensitivity. There is 38

ARKANSAS LAWYER

AUTUMN 1993

no doubt in my mind that laws that require society to deal fairly with any disadvantaged element of the community are valid pursuits for any humane and ethical society. These enactments do not force sensitivity, but instead require fairness, an attempt to strike a balance between economic interests in maintaining the status quo, and the application of legal principles demanding equality of treatment.

The disability community had hoped that, with the enactment of §

504 of the Federal Rehabilitation Act of 1973 (codified as amended at 29 u.s.c. § 794 (1988», they would take their place in the federal statutory scheme, which prohibited discrimination on the basis of race, sex, religion, national origin, and age.

But, in the time between 1973 and the enactment of the Americans With Disabilities Act of 1990 (42 U.S.C.A. §§ 12101-12213), little happened to change public perceptions. Eleven public hearings were held by the House of Representatives and three by the Senate, along with at least one public forum in each of the fifty states, all of which revealed continuing, unabated discrimination against those with disabilities. In School Board of Nasau County v.

Arline, 481 U.S. 273 (1987), the court emphasized that persons with disabilities have historically been subjected to "discrimination stemming not only from simple prejudice, but also from 'archaic attitudes and laws'." (Quoting from Timothy M. Cook, The Americans With Disabilities Act: The Move to Integration, 64 Temple Law Review 393 (1991».

The Senate's report, issued after the lengthy hearings, noted: Our society is still infected by the ancient, now almost subconscious

assumption that people with disabilities are less than fully human and therefore are not fully eligible for the opportunities, services, and support systems which are available to other people as a matter of right. The result is massive societywide

discrimination. See Senate Committee on

Labor and Human Resources, Rep. on the Americans With Disabilities Act, S.Rep. No. 116,101 51. Cong., 1st Sess. 7 (1989).

Both the Supreme Court comment regarding "archaic attitudes" and the Senate report which noted that persons with disabilities "are less than fully human" revealed the desperate need for legal measures to guarantee the access of disabled persons into the world we all know.

From the beginnings of the Republic, persons with disabilities were a neglected and isolated minority in American society. Rather than accepting the disability and allowing the disabled person into the mainstream, society, without apology, responded by shutting the disabled person away from the public to prevent the shame and embarrassment of the family.

Subsequently, institutions and other facilities were developed to remove the "burden" of caring for the disabled person from the family. This also allowed the families to forget that the person with the disability even existed.

It is from this foundation that American public perceptions of individuals with disabilities have their beginnings.

The sources of negative attitudes about handicapped persons are "social customs and norms, childrearing practices, and psychological fears and anxieties." Stephen L. Percy, Disability, Civil Rights, and Public Policy, 1989, p. 5. These attitudes have been conditioned and ingrained over many years and generations; thus it is difficult, if not impossible, to effect a change in society, with or without the passage of legislation. egative views of handicapped persons also result from fears and anxieties of nonhandicapped individuals about their own vulnerability to disability. Robert Straus, "Social Change and the

Rehabilitation Concept," p. 5, Sociology and Rehabilitation, 1966.

Interaction with disabled individuals becomes difficult when people are trying to avoid the thought that they too may become disabled. They attempt to avoid identification with the handicapped and are embarrassed because they do not know what to say or do in the presence of such individuals. Nearly one-half of the non-disabled public have primarily negative attitudes toward physically disabled people.

Jerome Siller, Attitudes of the Nondisabled toward the Physically Disabled, 1967. The result of all this is that [Wle have created an image of disabled people that is perhaps the

the Rehabilitation Act of 1973, the Architectural Barriers Act, and the Americans with Disabilities Act, the disabled community can point to very few advancements as a result.

Scholars have noted that "we still see, in almost every school district across the country, just as many students with disabilities excluded and segregated from the public schools their siblings and neighbors altend, despite a mandatory regulation requiring otherwise." Cook at 394.

In addition, the courts have not always been sympathetic to the concerns of the handicapped. The United States Court of Appeals for the fourth Circuit recently held that it was consistent with regulations and

greatest barrier they face. We see the

disability - the chrome and the leather, the guide dog, the hearing aid, the crutches - and look the other way. Just as we cannot seem to see the man in the policeman, so imposing are the uniform and the cultural expectations that go with it, so we cannot see the woman in the wheelchair. We do not see, nor do we

look to lind, her abilities, interests, and desires. - Frank G. Bowe, Handicapping America: Barriers to Disabled People, (1978).

Based upon these perceptions and attitudes, society as a whole has not come to accept the idea that disabled individuals can meaningfully participate in most activities. People continue to view the disabled as a group deserving of our pity and our handouts. They are not seen as equal members of society, deserving of participation to the fullest extent in every program available and accessible to the non-disabled public.

As a result, society has erected far greater barriers to access by the handicapped than stairs into a building or an office without an elevator. These are barriers as formidable as race and gender.

Even with the implementation of

with ยง 504 of the Rehabilitation Act to congregate services for students with disabilities outside of their neighborhood schools, forcing students with disabilities to ride segregated buses each day to other schools. The Court further held that the school did not discriminate against a hearing-impaired student by not providing an interpreter at this community school when such a program was available five miles away. Barnett v. Fairfax County School &\.,927 F.2d 146, 151 (4th Cir. 1991).

Appellate courts have also allowed government agencies to confine and isolate persons with

disabilities in remote institutions, nursing homes, and other segregated facilities. The United States Court of Appeals for the Second Circuit recently held that "there is no entitlement to community placement or a 'least restrictive environment' under the federal Constitution.

Society for Good Will to Retarded Children v. Cuomo, 902 F.2d 1085 (1990). Lf even the courts and federal agencies cannot see the way clear to implementation uf non-discriminatory practices without protracted legal battles, perhaps it is not such a surprise that the general public has difficulty envisioning the same result.

Even with the advent of the

Thirty years after the passage of the Civil Rights Act of 1963, which was enacted to abolish such discrimination, certain things have remained constant. Glass ceilings still exist and provide invisible but certain barriers to women in business, management, and the professions as they struggle for equality with their male counterparts. Businesses hire "token" members of minority groups and are allowed to believe that they are integrated and equal.

It is highly unlikely that, given the slow speed at which businesses have adapted to federal civil rights legislation, implementation of the federal laws dealing with individuals with disabilities will change even within a generation, and it is unrealistic to expect more. These ingrained attitudes toward persons with disabilities, like those attitudes which foster racism and sexism, are impervious to change without a kickstart from Congress or from the courts. As one observer noted, IY]ou cannot legislate away people's fears of the disabled, or the feeling ...that the disabled are somehow aHen beings... mainstreaming does not head to automatic accept;mce of the disabled as

federal legislation and the "landmark" cases setting the standards for implementation, members of the disabled community still must struggle for each small victory, when in fact, they should have long ago been provided access as a matter of right and equity.

However, issues that should have been settled long ago must still be debated and litigated. For example, two such issues presently in Litigation in Arkansas are the right of the handicapped to equal access to polling places and whether a hearingimpaired person has the right to serve on a jury with the aid of an interpreter.

40

ARKANSAS LAWYER

AUTUMN 1993

people. How do you legislate mandatory acceptance? How do you legislate away the loneliness and frustration of an employee when no one wants to have lunch with him? How do you legislate mandatory friendliness to the disabled person by nondisabled employees?

Employers and co-workers may follow the law, but will not care unless there is a

psychological breakthrough. - Bonnie P. Tucker, Section 504 of the Rehabilitation

can "force" sen itivity.

Only compliance may be enforced - not a change in prevailing attitudes. What the law is able to do is to help create sensitivity - by making businesses and individuals aware of the problem and by illustrating that the "archaic attitudes" do not po sess validity.

The requirement that all persons be treated equally regardless of any differences is not a "legislated" morality. It is a basic tenet of this society. Most Americans want to be fair and just but are insensitive, and this often prevents them from doing so because of cultural and generational perceptions. Legislation which leads to greater access, greater acceptance of the disabled in every available program will not force sensitivity. It will simply create a forum for the disabled and nondisabled to come together and begin to resolve the centuries-old misconceptions about the disabled, their abilities, and their place in society.

If the law forces anything, it forces the issue into the public consciousness and the realm of discussion.

In the light and brightness of discussion, sensitivity naturally follows. In order to bring about the most fair and equitable system, legislation that requires equality and fosters debate furthers the goals of the just society. We talk, we learn, we understand; and fear born of archaic attitudes begins to fade away.l

Philip E. KnplalJ is a sellior partner in the Little Rock firm of Kaplan, Brewer, & Maxey. This is one of several articles he

Act After Ten Years of Enforcement: The Past and the Future. 1989 University of

has writteIJ for TI,e Arkansas Lawyer

LUinois Law Review p. 845.

Magazine.

As a step along the way to full implementation and acceptance, it is vital that we are sensitive to the needs and concerns of the di abled. No law

IThe cOlTsiderable assistance of Angela BowdelT is grateflllly ackllowledged.

Am I a partner because I'm good or because ... ?

By JoAnn C. Maxey Would women have advanced in the legal profession or in other profeSSions without the existence of laws such as Title VII of the Civil Rights Act of 1964, which prohibits discrimination on the basis of race, color, national origin, or sex, or Title IX of the 1972 Educational Amendments Act, which makes it illegal to discriminate on grounds of sex in all public undergraduate institutions and in most private and public graduate and vocational schools receiving federal monies? Without doubt, some women would have been able to, and some in fact did, break through the artificial barriers that kept women out of certain professions without the aid of these laws. However, for most of us, it was the passage of these antidiscrimination laws that

unlocked and opened the doors of opportunity that previously were closed to us.

Now that those doors have been opened, what role do these laws continue to play in our efforts to advance within our chosen professions? Have we progressed SO significantly that merit alone will influence what further career advances we will make? The answer, very simply, is that while substantial progress has been made, our abilities alone still will not guarantee that we will reach the pinnacles of our professions. We will now have to use the same laws that once opened the doors to various employment opportunities to force those same doors open wider and to remove the remaining barriers that have impeded our upward mobility.

There is no doubt that women have advanced in the

legal profession and other businesses, but we must continue to question how much progress we have truly achieved.

In 1875, 21-year-old law school graduate R. Lavinia GoodeU was denied admission to the bar of Wisconsin.

In denying her motion for admission to the bar, the Wisconsin Supreme Court, in an opinion written by Chief Justice Edward G. Ryan, reasoned: There are many employments in life not unfit for female character. The profession of the law is surely not one of these.

The peculiar qualities of womanhood, its gentle graces, its quick sensibility, its tender susceptibility, its purity, its delicacy, its emotional impulses, its subordination of hard reason to sympathetic feeling, are surely not qualifications for forensic strife.

ature has tempered woman as little for the

juridical conflicts of the court room, as for the physical

conflicts of the battlefield. Womanhood is moulded for gentler and better things. - In the Matter of the Motion to admit Miss Lavinia GoodeU to the Bar of the Court, 39 Wis. 232 (Wis.

1875).

Clarence Darrow, who was defending the rights of the evolutionists in 1925, is reported to have told a group of women attorneys in Chicago: You can't be shining lights at the bar because you are too kind. You can never be corporation lawyers because you are

not cold blooded. You have not a high grade of intellect. You can never expect to get the fees men get. I doubt if you [can] ever make a Hving. Of course you can be divorce lawyers.

That is a usefullield. And there is another field you can have solely for yOUT own. You can't make a living at it, but irs worthwhile and you'll have no competition. That is the free defense of criminals.

When Justice Sandra Day O'Connor graduated with honors from Stanford Law School in 1952 she experienced the same kind of discrimination her sister lawyers had faced years before. She recounts that, upon her graduation, the only offer she received from a California law firm was as a secretary. "Time" Magazine, July 20,1981, p.12. Even these few examples illustrate that the passage of time alone has done little to further the acceptance of women into the upper echelons. Congressional and judicial mandates were necessary to help accomplish that end.

Since the enactment of the Civil Rights Act, the number of women lawyers has grown substantially and our presence in the courtroom is now common. In 1910, there were only 558 women lawyers. Between 1970 and 1980, the numbers grew from 13,000 to 62,000. This number continues to grow. Epstein, c.F., Women in Law, 1983, p.4 (citing various U.S. Bureau of Census Reports). Nevertheless, no one disputes that women 42

ARKANSAS LAWYER

AUTUMN 1993

continue to be underrepresented as partners. According to a 1991 survey by The National Law Journal, in the 251 largest U.S. firms surveyed, women made up 26.2 percent of aU lawyers in these firms and 37 percent of the associates.

Partners, however, remained overwhelmingly white and male, with women representing only 11 percent of this group. MacLaclan & Jensen, Progress Glacial for Women, Minorities, Nat'l L.J., Jan. 27, 1991, at 1.

A recent case provides evidence that this fort of subtle discrimination shows no signs of abating. In 1988, Nancy Ezold, an associate in the law firm of Wolf, Block, Schorr & Solis-Cohen, was d~nied partnership status in the firm's litigation department. She brought suit alleging that she was denied partnership status because of her sex. As proof, she presented evidence that the written evaluations of her male competitors, who were offered partnerships, contained remarks such as "disappears without notice" and '1 don't know how he has lasted this long," while all her evaluations were positive. She further submitted evidence that she was held to a more stringent standard in measuring her potential success as a partner than were the male associates. The district court agreed with Ms. Ezold and determined that the firm had indeed discriminated against her because of her sex in denying her partnership status. Ewld v. Wolf, Block, Schoor & SolisCohen, 758 F. Supp. 303 (E.D. Pa. 1991).

The struggle of women seeking to progress in the ranks of the law firm is similar to the struggles of women in general as they attempt to advance into upper-level management positions in corporate America. According to a recent survey by the Office of Federal Contract Compliance Programs at the Department of Labor, women occupy about one-third of all companies' combined work force. However they represent only 16.9 percent of "officials and managers" working for these companies and only , . . . - - - - - - - - 6.6 percent were in senior management positions. "A Report on the Glass Ceiling Initiative," U.S. Department of Labor, 1991, at 6.

Since women make up a significant number of the members of the bar, and of the work force

in general, why do women continue to be underrepresented in positions of authority, status, and money?

One reason is tha t we have not successfully eliminated all of the kind of thinking that formed the basis of Justice Ryan's opinion in 1875 or the comments of Darrow in addressing the women attorneys in Chicago.

In Price Waterhouse v. Hopkins, 490 U.S. 228, 109 5.0.

1175 (1989), a female accountant was forced to sue her finn for denying her partnership status because of her sex. In that case, the partners, in denying Ms. Hopkins her partnership status, made comments on her evaluation forms reflecting that her chances for partnership would be improved if she would "walk more femininely, dress more femininely, wear makeup, have her hair styled and wear jewelry."

While blatantly discriminatory comments may no longer be common, the kinds of sex-stereotyping comments expressed in Price Waterhouse are pervasive within our society. Women continue to be subjected to comments of sex stereotyping on a regular basis, at all ages and levels of society.

Earlier this summer, my husband and nine-year-old daughter were watching a baseball game on television.

The pitcher was struggling on the mound and was about to walk yet another batter. Without giving it a thought, my husband, offering his coaching assistance from the couch, told the pitcher to stop "throwing like a girl." My daughter, a good little softball player, immediately called her father on his comment and asked him what he meant.

It wouldn't be fair to attribute my husband's lack of sensitivity in making his comments to his gender. I know women are just as likely to make a comment like this. In fact, only a couple of weeks ago a female friend of mine, a mother of two daughters and a vice president of sales for a national company, committed the same faux pas.

We were all on the lake watching some skiers, one of whom was a young girl. The girl was quite experienced and very skillfully traversed the wake on her slalom ski.

My friend, without any more thought than my husband, said to my daughter, "She skis pretty good for a girl, doesn't she?" Again, my nine-year-old was up in arms and challenged my friend on her statement.

I doubt that my daughter is going to be permanently scarred by these isolated comments, but the cumulative effect of these comments will surely have a bearing on how she, as an adult, will see men and women.

As an adult, lawyer, and partner, the sex-stereotyping comments may not have much bearing on how I see myself, but they surely reflect how others see me.

Several years ago, after I had become a partner of this firm, I went to the bank to cash a firm check that was made payable to me, signed by me, and endorsed by me.

When I presented the check, the bank teller, a woman, noting my last name in the the firm name, asked if I worked for my husband's law firm.

In conversations with male lawyers, I've been called "honey", "sweetheart," and "babe" more times than I can remember. I've been told by fellow lawyers and judges how much better I am to look at than my male partners.

I usually ignore the comments or make light of them because, most of the time, the speakers are well meaning and have not intended their comments to be insulting at least I haven't perceived them that way.

However, the mere fact that comments like these are made, and the fact that even women like myself may not always consider such remarks to be insults, helps create and perpetuate stereotypical perceptions of women and our roles in society. As long as these perceptions of women's roles in society exist, we will be forced to continue the struggle to be recognized on a par with our male counterparts.

In what manner do these societal perceptions influence how we advance in the work place? According to a recent study that was funded by the U.S. Department of Labor, four areas significantly affect the career attitudes and outcomes of female executives.

They are: 1. Education and encouragement of perceived equality between women and men.

2. Placement of qualified women in Une authority positions.

3. Development of both formal and informal mentoring

programs.

4. Employer assistance and support in areas related to career-family issues.

5candura, T.A., "Breaking the Glass Ceiling in the 1990's," U.s.

Dept. of Labor Women's Bureau.

While one area of influence specifically concerns the perceptions of equality between the sexes, the other three areas of influence are impacted just as much by our perceptions and sex-role socialization, or the manner in which we are taught to treat men and women.

For instance, according to the same report, female managers are clustered in positions such as director of

human resources or vice president of public relations and marketing. Although these are responsible positions, rarely do they lead to the executive suite, since they are considered to be more "staff' positions than "Hne" or production positions. Generally, the jobs that lead to CEO positions are those having the most direct effect on the bottom-line profit of the company - the operations of the company. While there may be a variety of reasons why women are less frequently offered these jobs, one reason has to relate to our deeply imbedded beHef that women are better suited for jobs involving the nurturing of employee or cHent relationships and men are better in jobs requiring an understanding of how a product is manufactured. Women are often steered away from such positions, perhaps as a result of the idea, often fostered at an early age, that men are more science- and mechanicsoriented, and women are more oriented toward social and family relationships.

As for mentor relationships, OUT sex-role socialization also affects a woman's ability to establish such a relationship in the work place. Since there are so few women executives or women partners in law firms, a female starting out in business or in a law firm more Hkely than not will have to develop such a relationship with a male. This is in direct contrast to the so-called "old-boys network," in which male employees are immediately made to feel comfortable and accepted.

However, there are many factors in society that make these relationships between male and female employees much more difficult to estabHsh and maintain than malemale or female-female mentor relationships. First, you have to find someone with whom you may share a

common interest or background, or someone who is interested in helping you progress professionally. Then, if you are fortunate enough to establish such a relations.hip, you risk the very real possibility that there will be people who assume the relationship is more personal than business. This factor, alone, has to inhibit the growth of the relationship.

The "career-versus-family" issue, of course, results from the same sex-role socialization. Whose job is it to raise a family? Again, I offer my personal experience. A year and a half after I graduated from law school, my daughter was born. Six weeks after she was born, I went back to work. Although I had worked long and hard to get through law school and I knew that I would be happier at work than at home, I agonized over the decision I made to go back to work. My husband, however, never considered for a moment whether or not he was doing the right thing by going back to work after she was born. The job of raising our child would be 44

ARKANSAS LAWYER

AUTUMN 1993

shared, but because of the way we were raised, I was the one who struggled with the decision and had to overcome monumental feelings of guilt when I left her at day care. Fortunately, my husband has done more than his fair share of all the work that goes into raising a child.

He takes time off when she's sick. He picks her up from day care. He goes to school to meet with the teacher.

And yet, when she gets sick at school, I'm usually the one the school calls. Is it because I'm the easiest one to reach or is it because mothers are still considered to be the caretaker?

As long as there is sex-role socialization, our perceptions of men's roles versus women's roles will continue to affect the employment decisions we make.

Certainly, only qualified applicants should be hired and promoted into positions of authority. However, when we are making a decision on who is the best qualified individual for a position or a partnership, we have to be aware of the fact that we are influenced in making these decisions by perceptions and attitudes that reflect how we see men and women in society.

For instance, imagine you are a male employer who is seeking to promote either a male or female employee into a high-level executive position. From an objective standpoint, both individuals are equally qualified in terms of experience and skill. The decision you make must be based upon subjective criteria. What factors do you consider? Do you ask yourself to which employee you can better relate? Which employee will provide better leadership to the work force? Which employee has the greatest potential for future job growth? In answe.ring these questions, are you being influenced by how you see men and women? Do you feel you can better relate to the male because you have more in common \vith him? You've spent weekends playing golf with him and you both are avid basketball fans. You get along well with the female applicant but haven't had the occasion to spend as much time with her. You don't know her as well nor do you have as much in common with her. Or you have a predominantly male work force and you question whether the female can obtain the same degree of respect as the male from the work force. Or do you consider what effect the woman's young children will have on her ability to meet the difficult demands of the job? The man also has a young family, but you know his wife is there to take care of the children when the job demands that he work late at night.

Knowing these attitudes exist, what role, if any, does the law play in bringing about change? The fact that

laws exist places employers on notice that discrimination occurs. Being aware that a problem exists is one of the first steps in solving or eliminating the problem. However, it's simply not enough that we know that discrimination occurs.

We must acknowledge and become aware of the fact that we are influenced by attitudes and perceptions of sex roles in the most subliminal ways, and we must guard against letting these attitudes and perceptions affect the decisions we make.

While businesses may have a social conscience and try to be responsive to their employees, businesses are in business to make money and they have to consider their profit when they make a decision. The continuing presence of antidiscrimination laws and lawsuits like Ezold and Price Waterhouse force businesses to become cognizant of all the ways in which individuals can make

discriminatory decisions because a company's failure to recognize the problem will subject it to potential liability.

Thus, while the mere existence of the antidiscrimination laws will not force a change in attitudes, they will hold businesses accountable if these attitudes are allowed to affect business decisions. It is unfortunate that such laws are necessary, but until businesses accept responsibility and provide equal opportunity of their own accord, legislation is vital to protect our interests.

I hope that I am where I am today because of my qualifications, and not just because I'm a woman and it was time for my firm to hire a woman partner.

However, I know that until we have successfully eliminated all aspects of discrimination in our society, it will take conscious, deliberate, and affirmative efforts on the part of businesses to insure that women are being offered partnerships in law firms and keys to the executive suite, and are offered the job for the right reasons.

JoAnn C. Maxey is a senior partner in the Little Rock firm of Kaplan, Brewer & Maxey. This is her first article for The Arkansas Lawyer Magazine.

ATTORNEY-MEDIATOR SERVICE WINSLOW DRUMMOND 711 West Third Street Post Office Box 1401 Little Rock, Arkansas 72203 Telephone (501) 376-3021 Telecopier (501) 374-5118

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Military Personnel Policy: Who's in Charge? The courts, congress or the commander in chief?

By William A. Woodruff I. Introduction

The ongoing debate over the military's homosexual policy has produced conflicting signals from the three branches of government over establishing and administering military policy. President Clinton declared that a policy that discriminated on the basis of sexual orientation was wrong and vowed to lift the ban. At the same time, senior uniformed leaders of the military, who are also part of the executive branch, defended the ban. Members of Congress have come down strongly on both sides of the issue. Judicial decisions in recent years both affirmed and condemned the policy.1 The homosexual policy that triggered the debate is embodied in a Department of Defense directive promulgated by the Secretary of Defense. As commander in chief, the President certainly has a constitutional role in military policy.

The Constitution also gives Congress significant power and responsibility over military matters.

Indeed, article I, section 8 of the Constitution contains an impressive list of military powers and responsibilities vested specifically in the Congress. If fact, the Department of Defense directive at the center of the current debate was promulgated pursuant to a Congressional grant of authority to the Secretary of Defense to establish enlistment criteria.

While article III of the Constitution does not specifically mention the military or give any military powers directly to the judiciary, the principle 46

ARKANSAS LAWYER

AUTUMN 1993

of judicial review does bring the judiciary into the mix. Recent decisions by district courts in California overturning discharges of homosexual sailors 2 indicates the willingness of at least some judges to become involved in military policy.

But who is really in charge? Which branch of government, after resolving internal disagreements, gets to make the final decision? When the courts, the commander in chief, and the Congress all claim a role in running the mmtary, who gets the last word?

This article will briefly explore these

questions in the context of the debate over th~ homosexual exclusion policy.

Il. The Role of the Courts Despite some ambiguity early in our nation's history, it is now wellsettled that the courts have the power to review military policies, programs, and activities. In one sense, therefore, the answer to the question posed above is that the courts will have the last word. Merely acknowledging the fact that courts can review military decisions, however, does not determine the degree to which a court may substitute its judgment for that of

the political branches in matters involving the military. Both Congress and the courts have developed restraining 3 devices to preclude judges from becoming too deeply involved in military affairs 3 Ultimately, the question is to what extent maya judge second-guess policy decisions of the executive and legislative branches in reviewing challenges to military policies.

The Supreme Court has compiled a long and consistent record of granting considerable deference to the political branches in military policy disputes.

Over 100 years ago, the Court recognized the unique nature of the military: An army is not a deliberative body. It is the executive ann. Its law is that of obedience. No question can

be left open as to the right to command in the officer, or the duty of obedience in the soldier. Vigor and efficiency on the part of the officer and confidence among the soldiers in one another are impaired if any question be left open as to

their attitude to each other. 4 More recently, the Court noted that "judges are not given the task of running the Army ... ; [olrderly government requires that the judiciary be ... scrupulous not to interfere with legitimate Army matters . . . .5 Furthermore, the Court has acknowledged that federal judges are "ill-equipped to determine the impact upon discipline that any particular intrusion upon military authority might have."6 Goldman v. Weinberger,7 a case pitting military uniform regulations against an Orthodox Jewish rabbi's First Amendment free exercise rights, illustrates the degree of deference the Court has determined must be granted to military policy makers.

Simcha Goldman was an Air Force clinical psychologist and an ordained Jewish rabbi. In observance of his religious faith, he routinely wore an unobtrusive yarmulke while indoors in uniform. Air Force regulations,

however, precluded the wear of any headgear except as authorized by the Air Force regulations. The regulations did not permit the routine wear of a yarmulke. Goldman challenged the regulations as violating the Free Exercise Clause of the First Amendment. Goldman argued that wearing the unobtrusive yarmulke did not present a danger to military discipline or esprit de corps. He claimed the Air Force's assertion to the contrary had no support in actual experience or scientific study. In fact, he offered expert testimony that accommodating religious practices such as his would actually improve morale within the military and further the goals underlying the uniform regulations.

In rejecting Gold man's challenge, the Court noted that soldiers do not leave their Constitutional rights at home when they join the military, but the unique nature of military service and the requirement for discipline and obedience necessitates a review that is "far more deferential than constitutional review of similar laws or regulations designed for civilian society."8 Even if the policies are based upon "professional military judgment," as opposed to scientific studies, thi"s deferential review applies: But whether or not expert witnesses may feel that. . . exceptions to . . . [the military policy] are desirable is

quite beside the point.

The desirability of. . . regulations in the military is decided by the appropriate military officials, and they are under no constitutional mandate to abandon

tlleir considered professional judgment. 9

Though criticized,lO Goldman clearly teaches that courts must grant considerable deference to military policy makers, even when the policy at issue impinges upon rights specifically protected by the Constitution. Applying this principle to challenges to the homosexual policy leads to the conclusion that courts called upon to review the

policy must be prepared to defer to "considered professional judgment" even when plaintiffs argue that expert studies do not support the policy. If the military's interest in having everyone wear the same clothes is sufficient to overcome the longcherished and specifically enshrined right to the free exercise of religion, certainly the military's interest in unit cohesion and combat effectiveness is sufficient to overcome any particular group's desire to serve, whether they be single parents, high school drop outs, those who do not meet height, weight, or other physical standards, or homosexuals.

ill. The Role of the Political Branches Taken as a whole, the Supreme Court's jurisprudence concerning the review of military policies reveals that the courts are not charged with determining military policy. While a federal court is a particularly inappropriate forum to decide questions of force composition and service qualifications, the Legislative and Executive branches are specifically charged with responsibility for the military and national defense. l l The political branches, unlike the courts, are susceptible to lobbying efforts, political pressure from interests groups and constituents, and worries over reelection. But such is the nature of the democratic process.

Unlike the judiciary, the political branches are not required to give

deference to the decisions of military commanders. Both the President and the Congress may choose to accept the advice and recommendations of military leaders on matters effecting the Armed Forces, but they are under no constitutional command to defer to the judgment of uniformed military leaders. This principle of civilian control changes the nature of the debate when the forum is the political arena rather than the courtroom.

Instead of arguing over the standard of review that a court should employ or debating the degree of deference that a judge should give to a commander's military decision, the debate in the political arena can center on the underlying merits of the policy at issue.

Recognizing that the political branches have the authority and responsibility to decide the issue is only part of the analysis. Considering the allocation of authority and responsibility between the Executive and Legislative branches is another question.

A. The Executive As "Commander in Chief of the Army and Navy of the United States, and of the Militia of the evera] states, when called into actual service of the United States,"12 the Constitution certainly gives the President some authority over the military. The delegates to the Constitutional Convention, who wrestled with the difficult issues of allocation of military

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power in a central government, were familiar with the role of a commander in chief. They fully understood that it was the senior position in the military chain of command and carried with it significant power. Their recent experience with the British and European systems, however, made them wary of placing too much military power in one office. While the British king was also the commander in chief of the British forces, the office created by the Constitution was '''nominally the same," ... [but] 'in substance much inferior/ amounting 'to nothing more than supreme command and direction of the military and naval forces, as first general and admiral ... ,,13 While possessing the "supreme command and direction" of the armed forces is an impressive phrase, it does little to delineate the precise military powers vested in the President.

Clearly, however, the President does not have the relatively unchecked military powers of an 18th century

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AUTUMN 1993

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European monarch. In reality, the extent of the President's military authority is determined by the political process.

Justice Jackson's concurring opinion in Youngstown Sheet and Tube Co. v. Sawyer14 has become the classic statement concerning the scope of executive authority. In reversing President Truman's exercise of his commander in chief powers to direct the Secretary of Commerce to seize the nation's steel mills in an effort to prevent a labor dispute from disrupting production needed to support the war effort in Korea, Justice Jackson set forth a three-tiered paradigm of presidential power: 1. When the President acts pursuant

to an express or implied authorization of Congress, his authority is at its maximum, for it

includes all that he possesses in his own right plus all that Congress can delegate....

2. When the President acts in absence

of either a congressional grant or

denial of authority, he can only rely upon his own independent powers, but there is a zone of twilight in which he and Congress have current authority, or in which its distribution

is uncertain . ..

3.

When the President takes

measures incompatible with the expressed or implied will of Congress, his power is at its lowest

ebb, for then he can rely only upon his own constitutional powers minus any constitutional powers of Congress over the matter. .. 15

Under Jackson's formulation, determining the scope of presidentiaJ power requires considering what authority Congress has in the area and how it has been implemented, if at all.

While the President certainly has authority to establish military personnel policies, the reaJ question is whether Congress agrees or acquiesces in the policy. If so, and subject to a very deferentiaJ standard of judicial review, there is no question as to authority. If not, the struggle

then becomes one of the political will of the President on one hand and the Congress on the other.

B. The Legislature The military powers specifically granted by the Constitution to the Congress far exceed those specifically granted to the President. Article [, section 8, of the Constitution vests in Congress the power, among others, to "provide for the common defense," to "declare war," to "raise and support armies," to "provide and maintain a navy," to "make rules for the government and regulation of the land and naval forces," and the power to "make aU laws ... necessary and proper for carrying into execution the foregoing powers."16 In exercising its constitutional authority, Congress has granted the President and the Secretaries of the military departments statutory authority to promulgate regulations governing various aspects of military life and operations. While the President's title of commander in chief carries with it the inherent power to establish ruJes and policies governing the military, as commander in chief he is, in effect, part of the "land and navaJ forces" over which Congress is authorized to govern and regulate. As the chief executive, of course, the President can veto any rule that Congress passes. If he has the votes to sustain the veto, then his power as chief executive prevails over the congressional power to make the rules and regulations governing the armed forces. If Congress overrides the veto, then the President, both as the chief executive with the obligation to faithfully execute the law and as the senior commander in the armed forces, has the duty to comply with the valid exercise of congressional authority.

In the context of the debate over the homosexual policy, it is dear that the President can, by executive order or through departmental directives, rescind the homosexual policy and establish a different policy. It is

equally clear that any statutory provision passed by Congress and signed into law by the President or enacted over his veto will trump any executive order or departmental directive.

N. Resolving the Debate On July 19, 1993, the President announced a new homosexuaJ policy that purported to end discrimination on the basis of sexual orientation.

While less than what homosexual activists had hoped for, the new policy declared that sexual orientation was not a bar to service, but continued the practice of discharging those who engage in homosexual acts, who enter into homosexual marriages, or who claim to be homosexual. Because the previous policy did not define, mention, or consider sexual orientation apart from sexual conduct, the new policy actually creates an orientation-conduct dichotomy and declares that orientation is not a bar to service. Essentially, the President's July 19, 1993, policy is based upon the

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notion that sexual orientation is unrelated to sexual behavior. The President's policy also placed certain restrictions on a commander's authority to investigate allegations of homosexuality among members of the unit and contemplated the issuance of detailed investigatory guidance.

In hearings before the Senate Armed Services Committee and a subcommittee of the House Armed Services Committee, senior Department of Defense officials explained that the new policy was basically the same as the previous policy with only minor exceptions.

The creation of the orientationconduct dichotomy and the investigatory restrictions in the President's policy, however, caused some concern. Despite assurances from administration officials that the new policy was essentially the same as the previous policy, both the House and Senate Armed Services Committees approved amendments to the Defense Authorization Act for Fiscal Year 1994 tha t will, in effect, codify the policy that has been in place since 1981. The statutory language retains the discharge criteria as it existed under the previous policy, does not place limits on a commander's discretion to investigate matters that may effect unH morale, cohesion, and discipline, and does not contain the notion that sexual orientation is not linked to sexual conducl.16 Attempts during floor debate to amend the Senate bill and specifically defer to the discretion of the President were defeated.

Assuming that the pending legislation is passed and signed by the President, the homosexual exclusion policy will become a statutory condition on service, enacted pursuant to Congress' power under article I, section 8, of the Constitution.

Obviously, enacting the homosexual exclusion policy into law, rather than leaving it to the discretion of the President or the Secretary of Defense, reduces the authority of the 50

ARKANSAS LAWYER

AUTUMN 1993

Executive to alter or amend the policy in the future. Once Congress has exercised its constitutional authority to make the "rules for the government and regulation of the land and naval forces," the President's discretion is limited. He must faithfully execute the The codification of the law. homosexual exclusion policy also effects the scope of judicial review.

The extensive hearings before both the Senate Armed Services Committee and the House Armed Services Committee produced an impressive body of evidence to support the legislative findings contained in the statute. When signed into law, the statute will contain the congressional finding, based upon extensive hearings, that the "presence in the armed forces of persons who demonstrate a propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion, that are the essence of miJjtary capabiJjty."17

This exercise of congressiona 1 authority places the homosexual exclusion policy in essentially the same posture as the male-only draft registration law that was upheld in

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Royster v. Goldberg. 1S In 1973, after

establishing an all-volunteer armed forces, President Nixon ended the requirement for IS-year-old males to register for the draft. After the Soviet invasion of Afghanistan, however, President Carter determined that reactivation of the registration process was necessary. Accordingly, he asked Congress to transfer funds from the Department of Defense budget to the Selective Service System. The President also asked Congress to amend the Military Selective Service Act to register women for the draft as well as men.

Congress agreed that reactivating the registration process was appropriate. After extensive hearings, debate, and deliberation, however, Congress declined to provide for the registration of women and transferred only enough funds to provide for the registration of men.

Several male plaintiffs challenged the constitutionality of the all-male draft. The Supreme Court held that the male-only draft did not violate equal protection principles. Central to its conclusion was the fact that Congress was exercIsing its constitutional authority over the Armed Forces and that its decision was reached after careful consideration of the alternatives. The Court noted that "judicial deference .. . is at its apogee when legislative action under the congressional authority to raise and support armies and make rules and regulations for their governance is challenged."19 o doubt there will be judicial challenges to any statutory limitation on service by homosexuals. But the combination of executive and legislative authority that a statutory provision requires creates a formidable barrier that will not be easily breached. The very text of the Constitution commits this matter to Congress. In an exercise of this constitutional responsibility, Congress carefully and deliberately considered the issue. Committees in both houses conducted extensive hearings and

heard testimony from differing viewpoints. In the final analysis, the body charged with the power to raise armies and given the duty to make the rules to govern the military decided that the presence in the armed forces of individuals who engage in or who have the propensity or intent to engage in homosexual acts would create an unacceptable risk to the high standards of morale, good order and discipline, and unit cohesion that are the essence of military capability.

Goldman, Royster, and a long line of Supreme Court decisions teach that courts must defer to such judgments.

While the courts must defer to Congress on such issue, there is no requirement that those with opposing views do so. The exercise of congressional authority over the military on this or other matters does not carry with it the finality principles that apply to judicial decisions.

Congress has taken action to preserve a policy that military judgment and experience holds is necessary to maintain the effectiveness of our armed forces. In this regard, the debate is over and the question has been decided. Congress had the last word. It would be naive, however, to think that the issue will go away. In some respects, the battle is just beginning.

William A. Woodruff is an Associate Professor of Lnw at Norman A. Wiggins School of Lnw, Campbell University, Buies Creek, North Carolina. He earned his B.A. at the University of Alabama in 1970 and his J.D. at the University of South Carolina in 1978.

Professor Woodruff retired from the Army Judge Advocate General's Corps in 1992. His last Anny assignment was as Chief, Litigation Division, Office of the Judge Advocate General, where he was responsible for defending Army personnel policies, including the homosexual exclusion policy, before Federal courts.

END OTES 1. Compgre 8nl S1wlom P. MJJrsh, 881 F.2d 4S4 (7th Gr. 1989), cnf. dOliN, 494 US. 1004 (1990) (discharge or an admitted homosexual did not violate free speech or equal protection principles) with Mtinhold v. lJqHJrtm~nt of D~f~n~, 808 F. Supp. 1455 (CO. Calif.

1993) (discharge of sailor who announced his homosexuality on national television violates equal protection), app~al docketed, No. 93-55242 (9th Cir. 1993)

2. AUinhold v. Department of Defm~, 808 F. Supp.

1455 (CD. Calli. 1993); ()Qhl v. Sttrdary of t~ Navy, No. 5-89-0351 MLS, 1993 U.S. Disl. LEXIS 12102 (E.O. Calif.

Aug. 30, 1993).

3. See e.g., 5 u.s.C §701(b)(1)(F)&:(G) excepting from the judicial review provisions of the Administrative Procedure Act, 5 U.s.C. § 701- 706, military courts~martia1s, commissions, and military aulhority exercised in the field in time of war or in occupied territory; GillIgan v. Morgan, 413 U.S. 1 (19'73) (political question doctrines precludes judicial review and supervision of the training, equipping, and use of the National Guard); Mind~ v. StDmant 453 F.2d 197 (5th Gr. 1971) (judicial review of military decisions limit~ to those cases ~he~ plaintiff alleges military has Violated the Constitution, a statute, or its own regulations and plaintiff has exhausted administrative remedies. If plaintiff satisfies these threshold requirements, court must then balance the nature and strength of the plaintiffs claim, the potential injury to the plaintiff if review is denied, the degree of interference with the military function judicial review would have, and the extent to which military expertise and discretion are involved in determining whether to actually review the claim on the merits.).

4. In rt: Griml~, 137 US. 147,153 (1890).

5. Orloffv. Willoughby, 345 U.s. &3, 93-94 (1953). ~. Chapptl v. Waltaa, 462 U.S. 296, 305 (983). quotmg Warr~n. T~ Bill of Rights and th~ Military. 37 N.Y.U.L Rev. lSI, 187 (1962).

7.475 U.s. 503 (1986).

8.475 U.s. at 507.

9.475 U.S. at 509 (emphasis added).

10: See, t.g., Felice Wechsler, Comment, ConstitutIonal Law Goldman v. W~inbtrgu: CIrcumscribing tM first Ammdmtnt Rights of Military P~r50nntl. 30 Ariz. L. Rev. 349 (1988); Linda Sugin, Note, f"sl Am~ndmtnt RIghts of Military Ptrsonn~l.· DmYl1fg RIghts to Thost Who Dtfrnd Thtm. 62 N.Y.U. L. Rev. 855 (l9Sn; Mary }o Donahue, Comment, First Amtndmtnt Rights in Iht Military Conltxl: What Dtf~r~nc~ is DIl~? Goldman v. Wtinbtrgu, 20 Creighton L Rev. 85 0986-81).

11. U.s. Const. art. I, §8; art. n, § 2. Ste also Gilligan v. Morgan, 413 U.S. 1 (1973). In response to the Supreme Court's decision in Goldman v. Wtinbergtr.

475 U.S. 503 (1986). the Congress and the President exercised their constitutional authority and enacted a statutory provision that permits the wearing of religious apparel like thai at issue in Goldman. Str, 10 U5.C.§n4.

12 U.S. Const. art n, § 2 13. Richard Kahn, Tht Constitution and National Security: ThL 'nttnt of tM Framns. in The United Slates Military under the Constitution of the United States 1789 - 1989 61, 80 (Richard Kahn. ed., 1991), quoting The Federalist No. 69 (Alexander Hamilton).

14.343 U.s. 579 (1952).

15.3 43 US. at 635 - 638.

16. S. 1298, 10Jd Cong., 1st Sess., § 546 (1993); S. Rep. No. 103112, 10Jd Cong., 1st Sess.• 278-297 (1993).

17./d.

IS. 453 U.S. 57 (981).

19.453 U.s. at 70.

IMPORTANT The Executive Council of the Arkansas Bar Association at its August 28, 1993 meeting, voted unanimously to recommend the House

of Delegates sllpport the effort of the Arkansas IOLTA Foundation to petition the Arkansas Supreme Court to convert the

[OLTA program in Arkansas from volllntary to comprehensive. At press time a resolution of support was to be considered at lhe October 16 House meeting.

Information recently published in a statewide newspaper has been somewhat lacking in facts. Comments received by Delegates show a number of lawyers are

unaware of the obligation of any lawyer who handles client fllnds to have a trllst accollnt and sOme fail to appreciate the need to invest client funds hz separate accounts for the benefit of the client when it is economically feasible to do so. A few have the mistaken impression lawyers can earn benefits from

pooled cli""t accollnts. Many apparently believe lOLTA takes client morley and do not realize our Supreme Court in the opinio'1 cited below at 675 S. W. 2d 357 said: "The funds in question are not now available to individual clients, and for practical reasons cannot be made available to them." State and federal courts throughout the nation !lave consistently ruled there is not a taking of client property alld have IIpheld lOLTA programs ill the face of First, Fifth, Sixth and Fourteenth Amendment Constitutional challenges. Leading cases include Cone v.

State Bar of Florida, 819 F.2d 1002 (nth CiT. 1987),

Ceft.

denied, 484 U. S. 917 in

which HIe court noted at 1006: "The SlIpreme COllrts of at least 30 of these states have agreed with the Florida Supreme Court that 110 property is taken via the establishmellt of an lOTA program becallse such programs create it,come which would ''lever, under any set of circumstances accrue to the benefit of the client." Carroll lJ. State Bar of CalifoTl/ia, 213 Cal. Rptr.

305 (4th Dist. 1984), cert. dellied sllb nom.

Chapman v.State Bar of Cali/omia, 474 U. S. 848 (1985); Washillgton Legal FoundatiotJ v., Massachusetts Bar Fo.mdation 993 F.2d 962 (1st Cir. 1993).

The last two cases involve comprehensive, or

mandatory, [OLTA programs.

The following is the text of a brochllre beillg circlliated by the IOLTA FOllndation to explain the proposal to lawyers it will affect: The Supreme Court of Arkansas created the Arkallsas [OLTA program ill 1984. [II Re [OLTA, 283 Ark 252, 675 S. W.2d 355 52

ARKANSAS LAWYER

AUTUMN 1993

MEMBER

UPDATE

(1984). It was designed to provide additiollal fllnds for legal aid to the poor, projects that improve the administration of justice and legal edllcation.

The opinion allows for interest to be paid on nominal or short-term trust deposits held in a lawyer's or law firm's client trust account, with the interest remitted directly by the financial institlltioll to the [OLTA Foundation for distribution il1 grants.

While the program has beell volllntary, the [OLTA FOllndatioll Board has decided to ask the Court to include all trust accounts maintained for the pllrpose of holding nominal or short-teml deposits.

What duties do attorneys have with respect to retention of client funds?

Rule 1.15 of the Model Rules of Professional Conduct requires an attorney to hold clients' funds in an account separate from the attorney's operating account. Thus, attorneys comply with their ethical obligation by placing client funds such as filing fees, retainers, etc. in the lawyer trust account until distribution. It is generally recognized that amoWlls large enough to accrue a significant amount of interest should be placed in an account separate from the pooled client trust account, and the interest must be paid to the client.

However, deposits generally are not large enough or held long enough to generate interest that would offset the costs of maintaining a separate account.

Consequently, attorneys routinely pool such client fees in a single trust account.

According to federal regulations regarding NOW (negotiable orders of withdrawal) accounts, neither the attorney, nor the clients can receive interest. In fact, unless established as an IOL TA-type account, the financial institution is prohibited from paying interest on the account.

What is a comprehensive IOLTA program?

A comprehensive program would require all attorneys who practice in Arkansas and handle client funds, to convert their client trust account that holds nominal or short term client trust funds to an interest-bearing account. The interest earned on these accounts would be sent by the financial institution directly to the Arkansas IOLTA Foundation. The Foundation would then make grants for the delivery of legal

services to low income Arkansans, projects to improve the administration of justice, and law school scholarships.

Twenty-six states have comprehensive lOLTA programs.

Does participation in the program deprive clients of their interest money?

No. The program was not meant to utilize interest money from all client trust deposits - only those that are nominal in amount or held for short periods of time. No client is deprived of any practicable income opportunity. If these deposits were placed in separate, interest-bearing accounts, the administrative costs to the law firm and the service charges of the financial institution - coupled with the resulting tax liability to the client - would more than offset any income earned.

Can lawyers still deposit individual client funds into separate interest bearing accounts for the benefit of the client?

Absolutely. Lawyers should continue to establish separate, interest-bearing accounts for individual clients' funds where the sum is large enough or when the time of the deposit is of sufficient duration to justify the cost of opening, closing and administering the account.

Any interest accrued then becomes the property of the client.

Under a comprehensive program, where would a lawyer draw the line between which funds can be deposited individually and which funds cannot?

This is - and always has been - solely a matter of the lawyer's sound discretion.

A comprehensive IOLTA program will not change this process in any way, nor will it invite any grealer official scrutiny.

It is up to the lawyer to determine whether the amount of interest an account will generate justifies the expense of opening and maintaining a separate account for the client. Some JOLTA programs establish a bench-mark or safe harbor figure, however the Arkansas JOLTA Foundation has not opted to include such restrictions in the proposed amendments to the Arkansas rule. Under a comprehensive program, nothing would c1lange except that an attorney would be required to establish his or her pooled trust account(s) as an

IMPORTANT

MEMBER

UPDATE -

interest bearing IOLTA account with the interest earned sent directly by the bank to the Arkansas IOLTA Foundation.

How will a comprehensive program aflect current trust account practices?

This program will impose no new burdens upon attorneys. Attorneys have always exercised their discretion in determining whether a client's trust deposit was of sufficient size or duration to justify placement in a separate interestbearing account, with the interest payable to the client. Under a comprehensive IOlTA program, attorneys will retain their discretion and continue to make these fiduciary decisions after considering associated costs and tax factors.

Will comprehensive IOLTA require the banks to offer IOLTA accounts?

No. The new Rule would require all eligible lawyers to establish interestbearing accounts that benefit the Foundation unless there was no available financial institution in the county where the lawyer has his/her principal office.

Based on experience from the other states that have converted from voluntary to mandatory IOLTA, it seems certain that the demand for IOLTA accounts will be so great, that banks will begin to offer the accounts as a service to their clients.

If supply and demand will Umake" the

banks offer (aLTA accounts, what will happen in a one bank town?

There are very few one bank towns left, but under the proposed rule if there is no bank in the county that will offer IOLTA accounts, then the lawyer will be exempt from IOLTA participation.

not dictate banking relationships to lawyers or force lawyers to abandon existing banking relationships. Although a growing number of banks currently participate, not every bank in the State offers IOLTA accounts. Nationally, the experience is that comprehensive IOLTA programs encourage non-IOLTA banks to begin offering IOLTA accounts in order to preserve existing business. To allow all banks the opportunity to offer IOLTA accounts without losing business in the interim, the Arkansas IOLTA Foundation will continue its efforts to recruit banks throughout the state for participation in the IOLTA program. Should a lawyer's bank refuse to offer an IOLTA account and another bank in the county does offer them, the attorney will only need to move his/her trust account to the IOLTA bank.

Will a comprehensive IOLTA program result in disclosure of confidential relationships?

No. No further disclosure will be required than exists under the current voluntary program. All the IOLTA program needs to know is the identity of the account and the net interest earned.

Information concerning individual lawyers is limited to whether they have established an IOLTA account.

How much lawyer time and money will this involve?

Very little time and no money. The mechanics of converting to an IOLTA

Will a comprehensive IOLTA program interfere with existing relationships between attorneys and their banks?

A comprehensive IOLTA program will

Are there comprehensive programs in other states?

Yes, twenty-six (26) states have IOLTA programs that require lawyers to participate. Ten of these states were originally created as comprehensive programs. The other sixteen sta tes ha ve converted by an order of the state supreme court or an act of the state legislature.

What must lawyers do to comply with a comprehensive IOLTA program?

Under the proposed changes to Rule 1.15 of the Rules of Professional Conduct, the lawyer must convert his/her client trust account to an IOLTA account (by signing a form that the IOLTA program will send you) and certify annually as to his/her trust account practice.

What is the easiest way to convert my trust account now?

Contact:Arkansas IOLTA Foundation, 209 Capitol, N318, Little Rock, AR 72201.

Would you like to comment on comprehensive IOLTA? Write or

Will accounts with smaJi balances be required to participate in IOLTA? Every lawyer is required to enroll his/her client trust account if there is a financial institution in the county that offers IOLTA accounts, however, if after six months, the account is a losing proposition for the Foundation because the interest earned is less than reasonable fees and charges, then the attorney may be exempt from participating.

account are simple and once it is done no further time or effort by the attorney is required. A lawyer or firm need not change the way client trust deposits are accounted for and may continue to use the same checks and trust account number. The bank will handle all of the paper work. The Arkansas IOLTA program currently absorbs all bank service charges and fees from the interest earned and would continue to do so under a comprehensive program.

Call Your Delegate or Send Your Written Comments to: Arkansas Bar Association

400 West Markham

little Rock, Arkansas

72201

FOR MORE INFORMATION Lisa DeLoache Executive Director

call or write William A. Martin Executive Director

Arkansas IOlTA Foundation, Inc.

Arkansas Bar Association

209 West Capitol Ave. Suite 318 little Rock, AR 72201 376-1801

400 W Markham little Rock, AR 72201 375-4605 or 800-482-9406 FAX 375-4901

LAW

PRACTICE

MANAGEMENT

Marketing and Business Development

By Jerry Schwartz

Unfortunately for some attorneys, the words marketing and business development bring to mind l'carnival hawkers" and flashing neon signs.

Partner meetings concerning marketing and business development turn into long philosophical discussions on professionalism.

Some attorneys will not even allow the discussion of a marketing plan or will boycott the meeting which has the topic on the agenda. Most often these are the same attorneys who complain that the profession is not a business and should not try to be run as one and that there is no need for automation in the law office, when the manual systems work just as well and are less complicated. A marketing and business development program; establishment of proper business practices in the law office and automation help the attorney to prOVide services to the clients of the law office in a professional manner.

Many of these attorneys will argue that the law office has the best lawyers in town and that the law office always turns out a quality and timely work product and therefore there is no need for a marketing and business development program.

These qualities are expected by the client and do not set the law office apart from other law officcs in the area.

Marketing can be defined as the performance of an activity which directs the flow of services from the provider of services to the client in order to satisfy the client's needs and accomplish the objectives of the 54

ARKANSAS LAWYER

AUTUMN 1993

law office.

Satisfaction of client needs is the primary focus of a good marketing and business development program.

The attorney must keep informed of the nature of the client's business in order to serve. For many years attorneys solved the problems of their clients when they were called upon. A good marketing and business development program will identify possible problems that a client may encounter and provide preventative solutions to these problems. Is an attorney that is uninformed about the business of the client really serving the best interests of the client? How will an attorney know the business of the client unless the attorney is proactive in keeping informed?

Many law offices have identified ways in which they can be informed about the business of their clients.

Since clients give testimonials, attorneys that do not have a marketing and business development program will not have to worry about clients being "stolen"; the clients will be "running away" to other lawyers in order to get the that they feel they deserve.

Besides keeping informed about the nature of a client's business, a marketing and business

place to insure timeliness.

- Clients are informed of the status of the matter being handled with copies of correspondence and regular billing.

The following activities can be helpful in developing new clients for the law office: - Writing for trade and other publications.

- Speaking at seminars, luncheons and dinner meetings.

- Entertaining prospective clients and referral sources.

- Community, political and bar association activities.

- Announcement on changes in law office status in the city or community newspaper.

Notices in the alumni newspapers of the law school, undergraduate school and schools attended by your spouse.

Let people know what you are doing in your profession and ask to serve them. You will be doing both your clients and yourself a big favor.

Neglect in the establishment of a marketing and business development program because of inertia or distaste will result in lost clients.

Without clients there is no one to serve and no need to for the professional. A marketing and business development program makes good

development program will maintain

sense to maintain current clients and

the professionalism of the law office in the following ways: - CLE requirements for each attorney in the office will be strictly enforced to maintain a quality practice.

- Calendars and dockets are in

to find new clients.

Jerry Schwartz is the president of Legal Management Services, Inc. of Memphis, Tennessee, a consulti'18 and management services firm specializing in profitability improvement for small and tnedium size law offices.

LAW,

LITERATURE

&

LAUGHTER

little Dog v. little Car Proves Mismatch in Court

By Victor A. Fleming

As last quarter's column was concluding, I foreshadowed a dog of a suit to which I was referred by Lynn Lisk of Little Rock. I hunted up the canine

attitude toward the car was, and also to...check him for injuries:' "The wife" then testified, mostly to questions that were more leading in

case in question.

nature:

"Dog hits car, loses sui~ would have been an appropriate headline following trial of Bolstad V. Perguson in Prarie Grove Municipal or Washington County Circuit Court. While the Bolstads went into the VA Hospital to fill out some papers, they left P.]., "a tiny Boston Terrier," in the car.

Please allow THE RECORD to tell the rest of the story: Q. [Tlell me in your own words what happened the day that all these events supposedly took place.

A. [T)he wife and L..parked on the south side of the building..., and I had all four windows down...The dog was in the car, and I went into PersonneL.! was inside about twenty minutes. At the ten minute mark the wife went back out to check on the dog, and he was in the car at that time. She came back in [and] there was seven, eight minutes more involved there. We went back out to the car, and the dog was in the car. He was sitting on the little arm rest between the two front seats...[T]he guard came running between the two buildings, and he said, ''Your dog hit a car up front:' The dog's in the car.

He looks good to me..., but we drove around the building and pulled up behind [Ms. Perguson's] little red car, and 1 wanted the dog to tell me what happened. So,...1 took the dog over by the car. He showed no ill feelings or anything. Then I was concemed....about the dog...because if he made a dent that size and creased it until it actually had metal protruding, he had to be hurt. ..1 brought the dog out. .. to see what his

Q. You left the dog in the car?

A. Uh-huh.

Q. Have you ever had any problems with the dog getting out of the car or leaving or going where it's not supposed to?

A. No...2 Q. Now, when you took the dog out to the car, did he show any remorse?

A. o.

Q. And he acts real guilty about anything he does?

A. Oh, yeah.

The judgment against P.]. was affirmed - all $312 of it. 3 "How's that again, Judge?" Vicki Fewell of orth Little Rock found a testimonial excerpt (printed as true) in the May 14, 1993, issue of the "Alabama Prosecutor." In a probation revocation hearing, one of the allegations was that the defendant violated the provision in his probation that he "obey all laws." The judge was inquiring: Q. Do you admit that you failed to pay court-ordered financial obligations?

A. Yes. Q. And that you failed to obey all laws?

A. o,..Well, yeah.

Q. SO you admit to each of these allegations?

A. Except...kind of half the last one. I did get in trouble. But I didn't fail to obey all laws - just one or two. lf the defendant gets out again, maybe he'll get around to not obeying the others.

I'm glad we cleared that up! In the

following example (sent to me by Marilyn Rauch of Little Rock, as seen by her in the Texas Bor Journal) the lawyer's mind was on cruise control. But there was a malfunction between the eyes and the vocal chords. This is from a hearing in a dental malpractice case, having something to do also with a "negligent referral case of an oral surgeon":

Counsel. Plaintiffs counsel takes the position that in a negligence case, and in this case in particular, if Dr. Ryan ever learned anything, he should have learned that he was not able to perform oral sex.

LeYs take that situationJudge. Excuse me?

Counsel.

I'm sorry.

Oral surgery...I've got it written down as "5X."

I'm sorry, Judge. Thank you. I didn't even know I said it...

For THE RECORD, both counsel were Mr:s. The judge was a Ms. Š 1993 Victor A. Fleming 1. LLL apologizes for the excessive errata in the summer 1993 column: Satan v. Mayo

was decided in 1.2Zl.. not 1071, as printed.

Note 1 should have been at the style of Mayo, rather than after the first quote. The reference to the U.S. ~ should have been to the U.S. Marshal. In the Little River Chancery Case discussed, the first quote should have read "they be ~ contrary," rather than "they be no contrary." In the bracketed language of the next to last paragraph, the phrase should be describe," not "the describe." And the H

m

floating n in the last paragraph should have been quotation marks.

2. Fast forward through the cumulative part about going into the Personnel Office, etc.

3. Bolstad v. Perguson, Washington County, Arkansas, Circuit No. Civ. 90-0284; Arkansas Supreme Court No. 90-361, 305 Ark. 163,806 S.W. 2d 377 (991).

CLE

DIVISION

REPORT

Gimme What I Want

By Deb Garrison '1 want a good, low-cost CLE seminar even though I work in a highly specialized area of law."

'1 want to pick up some CLE credit at a four-star resort that features golf, tennis and an incredible atmosphere."

"I want intensive, one-an-one CLE workshops and I'm willing to pay topdollar for them."

"I want to hear big-name speakers:'

in my practice area -

"When it comes to CLE, the needs and desires of Arkansas attorneys are as diverse and varied as they are. H's enough to make the CLE staff throw up our hands in exasperation and say "Geez, we've only got so many resources when it comes to CLE programming - what do you really want?"

Transportation Law: How to Handle a Hearing before the State Highway Commission December 10, 1993 4.00 CLE Hours Early Registration Fee: $35 This seminar is the product of a unique cooperative effort by the CLE Division, the Arkansas State Highway Commission, and the Arkansas Motor Carriers Association. Both attorneys and motor carrier executives are invited to attend. The mornin~ session will follow the traditional CLE format. The afternoon session features a mock protested hearing before the Commission. After the hearing, attendees will have an opportunity to ask questions of the attorneys and Commissioners. The goal of this program is to demystify administrative hearings before the State Highway Commission. If

ARKANSAS LAWYER

Agricultural Law Update 1993 (Live via Teleconference) December 7 and 9,1993 Pine Bluff and Jonesboro 2.00 CLE Hours per session Early Registration Fee: $40 per session Arkansas lawyers who practice in the area of real estate or agricultural law will have an opportunity to hear the foremost authorities on such topics as "Estate Planning Considerations in Farm Transfers" and "Environmental Audits" in these live teleconferences. A special agreement between the Agricultural Law

But nol us.

In addition to the standard, six-hour seminars we usually bring you, the CLE staff is hard at work on a number of new, innovative CLE seminars that we hope you'll attend. After all, each one offers something unique that many of you, at one time or another, have asked for. If you'd like more information about any of the following seminars, please call us at 375-3957.

56

your practice involves representing motor carriers or if you would like to expand your practice into this growing area of law, you should attend this seminar.

AUTUMN 1993

Section of the Arkansas Bar Association and the General Practice Section of the American Bar Association enables us to bring you these experts: Steve Bahls of Montana; David Downey of Illinois; C. Allen Bock of Illinois; Phil Harris of Wisconsin; William Anaya of Illinois; and one of our own, Martha Noble of Fayetteville.

Special sponsorship by Simmons Bank in Pine Bluff and Jonesboro enables us to keep the registration fee low. Program coordinator, Bill Bridgforth of Pine Bluff, says that this seminar is "a must for every attorney involved in real estate, agricultural law or estate planning.

Family Law Mediation Training December 13-17, 1993 = UALR School of Law Little Rock 40 Hours of Instruction Registration Fee: $550 This unique seminar will teach you mediation skills using a highly interactive format featuring a combination of exercises, small group discussions, mediation role plays and lectures. Each participant will have an opportunity to act as a mediator in simulated mediation sessions. Judy Balentine, Millie Hansen and other members of the Alternative

Dispute Resolution Committee have been hard at work on this training conference.

Their efforts are focused on bringing the top trainer in the area of family law mediation, Dr. John Haynes, to Little Rock to lead this seminar. Registration will be limited to 25 participants to insure a one-on-one learning experience for each participant. Successful completion quaJifies participants to be certified as family law mediators.

The Essence of Advocacy featuring James W. McElhaney December 15- 17,1993 Hyatt Grand Champions Resort Palm Springs, California For those of you who prefer to get your CLE credit out-of-state, here's your chance to do just that - and support your local CLE Division at the same time.

James M. McElhaney, one of the country's premier speakers on evidence and trial practice, will present nine hours of live CLE sessions. Round out your CLE hours by attending videotape sessions of the famous Irving Younger. Enjoy your off hours by taking advantage of all the recreational opportunities offered by the Hyatt Resort, an MA 4-Diamond property. Parlor suite accomnlodations are available for the unheard of price of $150.00 per night! To hold down costs, we will not mass mail a promotional brochure for this program. Call now if you'd like for us to send you one.

Family law practitio"ers: Mark your caleudars now for two new seminars in 1994.

Linda Shepherd is planning an Attorney Ad Litem Traiui"g for March 11. Dean Howard Eisenberg and Judge AtJtlabelle Clinton Imber are 'Working together on our first Family Law problem-solving seminar which is scheduled for March 12 - Register for both seminars and receive a discounted registration fee. You will be receiving more detailed brochures about these intensive training programs itl the near future.

}

ARKANS~ S()~mTY

ErAs To A

F

....,.........,.

ERTIFIED PUBLIC A~COUNTANTS DIRECTORY

OF

OU WITH t~TIGATIO SUP ORT SERVICES

SIST

MaRJ. J¥e

J...... llaasoa

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PRESIDENT'S

MESSAGE

Are You Doing Your Part?

By Lamar PeUus

Donna and I have been surprised and pleased with the many compliments, letters, and calls we have received regarding the Summer 1993 issue of The Arkansas Lawyer. On behalf of both of us, I extend our appreciation. Having read the article four or five times, I am amazed how much a trained journalist can do with so little with which to wurk.

We thank you, Paige Markman, for the excellent coverage!

Everywhere I turn, every place 1 go, lawyer groups are in rage because lawyer bashing has gone prime-time.

Do we have a defense? Are the underlying themes hidden in jokes meant as real messages to us as individuals, as a profession? I suggest the answer to both of these questions is "Yes!" U you disagree, I encourage you to read Gary A. HengsUer's article "Vox

Populi - The Public Perception of Lawyers; ABA Poll" in the September 1993 issue of the ABA Journal.

It is still my position that the strongest defense to lawyer bashing is an Aggressive Response to a Misinformed Society - a call to A.R.M.5.

Your Bar Association has taken several steps and will continue to work toward informing the public of the lawyer's role in modern society. However, without your help and participation, our image will remain tarnished.

What has/is the Association done/doing?

Action: Conducting an aggressive and continuing review of the rules which regulate the practice of law.

Results: To become licensed to practice law in Arkansa:s, a new admiuee

58

ARKANSAS LAWYER

AUTUMN 1993

must pass the nationally-administered Professional Responsibility Exam; this rule becomes effective with the 1994 Summer Exam.

In order to qualify for the reimbursement from the Client Security Fund, no longer must the aggrieved client establish that the attorney guilty of misconduct has been "disbarred" or "died." In addition, the ceiling on claims has been increased from $25,000 to $40,()()().

Pending Action by the Supreme Court: The Association petitions: To modify the Continuing Legal Education regulations by requiring one hour of the necessary lwelve hours be devoted to Professional Ethics.

To require attorneys to annually certify the existence of client trust accounts.

To expand the professional staff and increase the funding of the Committee on Professional Conduct, thus increasing the speed at which complaints against lawyers can be processed.

The Public Information Committee presented an excellent televised program, "Legally Speaking:' during the last Bar year. Under the able leadership of Stacey DeWitt, the Committee is aggressively pursuing grants and a joint venture with the Arkansas Educational Network fur future programs. In addition, the Committee, with the assistance of our Communications Director, Paige Markman, is arranging a "focus group" type program designed to gather business people, lawyers, judges, educators, other professionals, and members of the public in an assembly to discuss how the delivery of legal services

and the judicial process can be streamlined to better serve the needs of our constituents - the clients-while simultaneously preserving and protecting one's individual rights. This is not a forum through which the lawyers will tell/inform the others of why we should be loved.

Hopefully, by the end of the Ba.r year, the Association, through its Long Range Planning Conference, will have established some very specific goals and guidelines which the Association will attempt to implement to improve the public image of the profession, as well as the entire judicial system.

Despite the lofty goals and efforts of lawyer associations, Paige Markman, and committees led by the likes of Stacey DeWitt, the public perception of lawyers will not be altered without your input and efforts in your own community.

I ask you again to join in the campaign to prove an Aggressive Response to a Misinformed Society. Speak out. Be deliberate but informative. Be firm but not defensive.

May I be so bold as to offer some thoughts - most of which are not original: When people, especially clients, criticize the law which governs their case or the judge who is to apply the law, remind the complaining party that neither lawyers nor the judge makes the law. Point out that this state's legislative body, elected by popular vote, is comprised of a majority of non路lawyers.

The legislative bodies make laws and act as the voice of the people - not lawyers and judges. Emphasize that lawyers can

only apply the law to a certain set of facts, and judges, chosen by the people, take an oath to uphold (enforce) the law.

Do not ask people to "love" or "like" lawyers or criticize those who tell "lawyer jokes"! Instead, inform people of the lawyer's role in our society, point out that at least one-half of the people who walk into a courtroom will leave believing they "lost," "have been beaten," or, more likely, "have been done wrong."

Explain that a lawyer's sworn obligation to society is to be an aggressive advocate for an individual's rights, which role usually causes resentment, a natural human response, in the opponent.

A lawyer can sue someone he or she likes, but it is very seldom that the one sued will ever like the lawyer. That is natural, acceptable, and does not need to be changed.

What is unnatural, unacceptable, and must be changed is the fact that of a high percentage of the participants come away from the conflict disliking both lawyers.

Read the ABA Journal article and reevaluate your relationships with your clients and your public. Revitalizing a strong, favorable public image of our honorable profession is a campaign, not a crusade. Only through you can we effectively communicate the need for a strong, aggressive l respected legal professional and the absolute necessity for a well-funded independent judiciary if society is intent upon the preservation of individual liberty.

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Survivors include his wife, Mary jane Elliot Clegg; a daughter, Carolyn Clegg. an attorney; one son, Elliott L. Clegg. an attorney; and a sister, Mary Elizabeth Holmes of Little Rock.

Memorials may be made to the First United Methodist Church, Arkansas Cancer Research Center, or the Magnolia Boys and Girls Club.

OLNER

M.

CLEGG

JOHA NA HALTOM SALTER

Oliver M. Clegg, 74, of Magnolia died in September. He was a partner in the law firm of Keith, Clegg and Eckert. He was a founding father of the Natural Resources Law Section of the Arkansas Bar Association and the first chair of the Natural Resources Law Institute.

He was named an outstanding alumnus of the University of Arkansas School of Law in 1989 and in 1991 he was honored by Souther Arkansas University as one of its outstanding alumni.

Clegg was a past President of the South Arkansas Symphony. He was an active member of the First United Methodist Church and served a ten year term on the Board of Trustees of Hendrix College.

CURTIS VI I G PACKARD

Curtis Vining Packard, 82, of Little Rock died in September.

He practiced law in Republic and Springfield Missouri and retired as Attorney in charge of the Real Estate Di~sion, U. S. Corps of Engineers in Little Rock.

He was a member of SI. Luke's United Methodist Church and was a M.S.G.T. in the U. S. Army during World WarD. He is survived by his wife, Dorothy Packard of Little Rock; a son, Forrest C. Packard of Little Rock, a daughter, Ann Vining of Everett, Washington; a son, jon Cameron Packard of orman, Oklahoma; and three grandchildren.

johanna Elizabeth Haltom Salter, 33, of Texarkana, Texas died in August. She was a practicing attorney with Pallon, Haltom, Roberts, McWilliams and Greer Law Firm, a member of the Arkansas and Texas Bar Associations and the Walnut Street Church of Christ.

SUMvors include her husband, Dr. William Richard Salter of Texarkana; her parents, jim and Sarnrnye Haltom of Texarkana; one brother, John Hunter Haltom of Norfolk, Virginia; one sister jennifer Haltom Doan of Dallas, Texas; her grandfather, john E. Haltom; and her grandmother, Clarice Mathis.

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ARKANSAS lAWYER

AUTUMN 1993

YOUNG

LAWYERS'

SECTION

COLUMN

Just Say IIYes For Comprehensive IOLlA in Arkansas ll

By Brian Ratclill

On September 17, 1984, the Supreme Court of Arkansas held that lawyers may voluntarily participate in an Interest on Lawyers Trust Accounts program. In

SO

doing, the Supreme Court stated: "The underlying concept of the 10lTA program is that while the interest generated by each client's trust account funds is too small to warrant payment to the client, the collective interest generated by lawyer's trust accounts may be substantial. The public good will be advanced and many public benefits will flow from the adoption of a voluntary program designed to generate interest on lawyers' trust accounts." I"

Re: The Matter of Interest 011 Lawyers' Trust Accounts, 283 Ark. 252, 675 S. W.2d 355,357 (1984).

The Court's statement was very prophetic. Since its inception, IOLTA has distributed $1,047,104 in grants to worthwhile projects which offer legal aid to the poor, promote the administration of justice, and sponsored student loans and scholarships. 10lTA has supported the Young lawyers' Section by approving grants for printing of the Senior Citizen's Handbook and Consumer Law Hondbook totaling $16,000. These projects epitomize one of the foundations objectives by improving the administration of justice.

A few noteworthy Arkansas [OlTA Foundation grants are: Leaming Law in Arkansas (an organization that coordinates law-related education efforts in Arkansas for grades K-12), Know Your Rights pamphlet; Small Claims Court pamphlet, Jurors' Handbook, Veterans' Handbook, A Guide to

Understanding Guardianship and the Available Alternatives, and the Arkansas Death Penalty Resource Center. The foundation attempts to fund eight scholarships to law students across the state for those who demonstrate need and merit. At least one scholarship at each law school is awarded to a minority student.

The Arkansas [OLTA Foundation should be commended for the selection of such worthwhile projects for its grants.

When 10LTA was formed, interest rates on NOW dlecking accounts ranged from 8% - 9%. Today the average interest rate on NOW accounts is 2.4%.

This has drastically affected the income of [OlTA grants. Since 1989, 10lTA's peak year, income has decreased by 35%.

For the grant year 1994, the foundation plans to award a total of $80,000, a 70% decrease since the 1990 grant year.

When Arkansas adopted voluntary IOLTA, there were 22 states with existing lOlTA programs. Of the 22, there were three states with comprehensive 10lTA, all lawyers pooled client trust accounts must be an lOlTA account. At this time, there are 26 states with comprehensive lOlTA programs. There are only six voluntary 10lTA programs remaining.

It is estimated that 40% of the eligible lawyers participate in the Arkansas 10lTA program. 10lTA has recruited 67 new accounts since January 1993, but still experienced a 16% decrease in income. Nationally, voluntary programs have a 30% participation rate. It speaks well of our program and its grants to have such a high participation rate.

When the Supreme Court of Arkansas sanctioned the voluntary IOLTA program, they stated: "The interest produced by the trust accounts of all practicing attorneys in Arkansas would be a very significant source of income for the benefit of public interest programs related to the legal profession." In Re: The Matter of hlterest ou Lawyers' Trust Accounts, 283 Ark. 252, 675 S. W.2d 355, 357 (1984) (emphasis added).

In order to stop the slide in its income and create more income for its grants, the Arkansas 10LTA Foundation has now proposed that we become a comprehensive program. In states that have converted to comprehensive 10LTA, a 400% - 500% increase in revenue has been experienced. In order to convert to a comprehensive [OlTA plan, the Arkansas 10LTA Foundation has proposed that Rule 1.15 of the Rules of Professional Conduct be amended to make the enrollment of lawyers' pooled trust accounts in interest-bearing 10LTA accounts a requirement for all nonexempt attorneys in Arkansas. This proposal has been approved by the Executive Council of the Arkansas Bar Association.

A petition will soon be presented to the Su preme Court of Arkansas to amend Rule 1.15. Based upon lOLTA's proven track record in supporting the improvement of the administration of justice, legal aid to the poor, and providing student loans and scholarships, I encourage each of you to say "yes" and support this petition when presented.

LAW

THE UNIVERSITY OF

ARKANSAS AT LITTLE ROCK SCHOOL OF LAW Altheimer Lecture. The fall Ben J. Altheimer Lecturer will be delivered on Friday, November 5, 1993 by Wisconsin Supreme Court Justice Shirley Abrahamson. The lecture will begin at 5:30 p.m. in the Friday Courtroom in the Law School. Justice Abrahamson is a former member of the University of Wisconsin Law School Faculty, was one of the first womt:n partners in a major

Wisconsin law firm, and was the first women to serve on that State's highest court. Her talk is tentatively entitled: "Does Law School have Anything to Do with the Practice of Law." Regional Moot Court Competition.

For the first time, UALR will host the regionnl National Moot Court competition

on Thursday through Saturday, November 18 through 20. Any attorney interested in volunteering to act as a judge

should contact Dean Eisenberg, as judges are needed. We are particularly interested in lawyers who attended law school in Texas, or at least not at one of the

Arkansas Law Schools. The region consists of all of the law schools in Arkansas, Oklahoma, and (you guessed it) Texas.

Summer Program. The Law School instituted its first summer program for discretionary admittees. The two week program, which immediately preceded the start of the regular orientation, was intended to assist students understand how to prepare for law school classes, improve study habits, and avoid stress.

Although the school anticipated that 30 students would attend, 45 first year students actually attended the voluntary program.

First Year Class. The Law School accepted deposits from 150 students admitted to enter the first year class. Of these, 149 actually matriculated. The average "no show" rate in previous been between 5% and 10%. Of the 149 first year students, 31 belong to minorities.

Reversing a trend in recent years, 56% are men. However, for the first time in the School's histury, the number of women in

62

ARKANSAS LAWYER

AUTUMN 1993

SCHOOL

NEWS

the night program exceeds the number of men.

Student Awards. The UALR Law Student Chapter of the American Bar Association won the Law Student Division's "Rookie of the Year" Award for the Volunteer Income Tax Assistance Program. Todd ewton, the director of that program, won the Association's Bronze Key Award, at the Circuit Meeting. For the third straight year, the UALR ABA Law Student Chapter won the Covernor's Trophy for the best chapter in the circuit. Newton is also the Law Student Division's liaison to the ABA Criminal Justice Section Prosecution Function Committee. The McClellan Senate (UALR) of the Delta Theta Phi Law Fraternity won the award for the outstanding senate in region 4, which includes all of the law schools in Texas.

Todd Newton also received the award for the Outstanding Student in the region as well as the first place in the William C. Thomas Speaking Competition held during the fraternity's annual convention in San Diego in August. In May Todd Creer and Dean Eisenberg represented the Law School before the Little Rock School Board as the School was recognized as a "Partner in Education" for students' work in tutoring and mentoring students at the Rockefeller School across Interstate 30 from the Law School.

The Law School and the Arkansas School for the Deaf have begun a cross menta ring program which includes two sign language classes in the Law School and one-on-one men to ring of ASD students by Law Students. As a direct result of the Law School's work with the School for the Deaf, in July suit was filed in federal court challenging Arkansas' absolute prohibition against deaf and hearing impaired persons from serving on juries in state court. Dean Eisenberg is acting as co-counsel for the plaintiffs on a volunteer and personal basis.

FACULTY ACTIVITIES. President Clinton has nominated Professor Paula Casey as United States Atturney for the Eastern District of Arkansas. Professor Casey was sworn in as Acting U.S. Attorney on August 16th. She will be sorely missed by everyone at the Law SchooL .. Coleen Barger was one of the speakers at the Arkansas Bar Association's Best of CLE program in June. She spoke on "Overview of the

Revocable Living Trust." ....Dean Howard Eisenberg acted as moderator for a half day of the "Summer School" held during the Arkansas Bar Association's annual meeting. He also personally presented a segment on "Ethical Issues in Delinquency Representation." Dean Eisenberg also was selected to present his program on "Ethical Issues in Elder Law" as part of the Best of CLE Program. In the faU he will make CLE presentations at the Criminal Law Seminar on the Exclusionary Rule and at the Elder Law Seminar on Financial Exploitation of Older Persons. In July Dean Eisenberg conducted a workshop on financial exploitation of older people at the Tenth Annual Sanders-Brown Summer Program on Aging at the University of Kentucky in Lexington. The Dean has been appointed the official liaison of the Lawyers Conference of the Judicial Administration of the American Bar Association to the Judicial Standards Committee of the Judicial Conference for the purpose of responding to the Discussion Draft of I Standards Relating to Appellate Courts.

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He has also been appointed chair of the committee of the American Academy of Appellate Lawyers on the same subject.

He will attend the Standards Commission meeting in October on behalf of the Lawyer's Conference and the Academy ... Professor Lynn Foster attended the annual meeting of the American Association of Law Libraries in Boston in July where she gave a talk on "References to Catfish in the Law of Arkansas" to the New England Symposium on Sea Food and the Law .... Professor Dent Gitchell participated in the Arkansas Bar Association's CLE program on "An Arkansas Trial Notebook" during the Association's annual meeting. He also served on the faculty of the Southern Regional Institute for Trial Advocacy Program in Dallas over the summer....Professor Charles Goldner has been named Associate Dean of the Law School, replacing Professor John DiPippa who has returned to full time teaching after three years of outstanding service to the Law School in that capacity. Professor Goldner spoke to the Arkansas Municipal League Convention in July on the advantages of a home rule amendment to the Arkansas Constitution. This speech was based on his article "A Call for Reform of Arkansas Municipal Law" which appears in Volume 15 of the UALR Law Journal... Governor Tucker has appointed Professor Gene Mullins to the Workers Compensation Ongoing Review Committee for an indefinite term .... Professor Arthur Murphey's article on "Revised Article 3 and Amendment Article 4 of the Uniform Commercial Code, Comments on the Changes They will Make" will appear in the fall issue of the Arkansas Law Review....Ranko Oliver conducted the first class in disability law during the summer semester and directed a continuing education program on Disability Law at the Law School on July 9th.... Professor Betsy Parsons has been instrumental in involving the Law School with issues of deaf and hearing impaired persons. This has included not only the cross men to ring program and the litigation challenging the exclusion of hearing impaired persons from the jury, but also using students from the School for the Deaf as jurors in the Law School's Trial Advocacy Program .... Assistant Dean Susie Pointer has completed the Arkansas Domestic Abuse Bench Guide she co-authored with Chancellor Annabelle Clinton Imber .... Professor Frances Fendler Rosenzweig has collaborated

with Professor Marek Wierzbowski (University of Warsaw, Poland) on an article "Z aga dniena prawne pozyskiwania kapitalow amerykanshich dla inwestowania w polskie papiery wartosciowe" which appears in the May issue of Panslwo i Prawo (State and Law).

As the title suggests, the article deals with American capital investment in Poland....Professor Tom Sullivan's article on "A Practical Guide to Recent Developments in Federal Habeas Corpus for Practicing Attorneys" appears in the summer issue of the Arizona State Law Journal. Professor Sullivan also participated in training of FBI agents in May by speaking on "Defense Counsel's

Approach to Testifying Agents."

Sullivan's article on "The Arkansas Remedy for Retaliatory Discharge of Workers Compensation Claimants: A short, but Winding Road" will appear in Volume 15, number 4 of the UALR Law JournaL ... Professor Robert Ross Wright III serves not only as Secretary of the General Practice Section of the American Bar Association, but also chair of the bylaws committee and group director of bar relations. He was recently reappointed a member of the Special Committee on Solo and Small Firm Practitioners of the ABA to which he is also the liaison for the Section of Legal Education.

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Third Best

By William A. Martin

"Why not the best?"

"Give them third best to go on with, the second best comes too late, the best never comes. " Are there ideas in these quotations that can help us achieve a sense of proportion and become better lawyers and better people? Can they help us cope with the stresses of being lawyers in today's world? Is third best a betrayal of a search for excellence? How can it square with the duty to zealously represent clients?

We probably recognize the opening question as a challenge President Jimmy Carter tells about Admiral Hyman Rickover issuing to him and to others. The quota tion which follows is one Assistant Dean James Taylor, Jr., now of the Wake Forest Law School, used more than once when he was an active duty Air Force Brigadier General and my supervisor when I was Chief of Air Force Claims and Tort Litigation. It is attributed to Sir Robert Watson Wall, the father of radar in Britain. The idea was helpful to me in deciding when enough work had been done on a particular case.

Lawyers have a multitude of tasks to perform and a limited amount of time to do them. To have gotten through law school, passed the bar examination and received a license to practice shows we are already high achievers. Most of us have a desire to

be extraordinarily successful which makes us tend toward being perfectionists. Drive, ego, ambition are traits which help make us good lawyers, but if they get out of hand they can make us dissatisfied with our profeSSion, frustrated, depressed, unable to complete a job and even eventually destroy us.

If third best is an extremely high quality product it can be a realistic and pragmatic level of accomplishment. To do more may waste our client's money if we are billing by the hour. (And we must always guard against the temptation to take more time mainly to increase hours rather than to produce the required quality of work.) So often the last bit of improvement extracts a cost all out of proportion to the benefit.

To spend more time and get to second best will do just what Watt described, come too late. Our clients are ill served if the contract falls through because the offer has just been withdrawn, the beautifully prepared will is finished just after the prospective testator dies, the brilliant brief is filed just after the court's deadline, and a multitude of other scenarios we can think of where trying to make the product a shade beller makes it come too late.

How do we know when we have achieved third best? "Ah, there's the rub." We will never be sure. Taylor had another quotation from Watt:

"The summit of human wisdom is to know the exact shade of gray to wear on any particular occasion." Similar are some lines from Vincent W. Foster's commencement address to the University of Arkansas Law School last May: "...Your challenge will be to use your education and all your life's experiences to exercise good judgment to select from among the shades of gray.'"

Lawyers have the experience, education and the mind set which makes us able to handle concepts, uncertainties, ambiguities - things unmeasurable by numbers - better than most people. That ability is among the reasons clients need us to do what they cannot do for themselves. My understanding of John Wesley's challenge to Methodists to be going on to perfection is we will not get there in this life but we must strive to improve and also accept we are imperfect. In our work we should be going on to perfection but also develop the instinct to know when the shade of gray has reached third best, accept in our hearts and minds we ha ve gotten there, deliver the work, and go on with the next task until we get to third best with it. .. The Arkansas Bar Association hos copies of the address available to members upon request.

Arkansas lawyers are Proud of their IOlTA Bank The Arkansas JOLTA Foundation is grateful to the many financial institutions that offer IOLTA accounts to the lawyers in their community. These financial institutions, through the lawyers who maintain pooled trUSt accounts in their institution,

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LEGAL DIRECTORIES PUBLISHING COMPANY, INC. 911l Garland Road Facsimile (214) 324-9414

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P.O. Box 189000 • Toll Free (800) 447-5375

Dallas, Texas 752l8-9000 Telephone (214) 321-3238