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I

Results 01 the July FAX POll W. ne.iv.d 56 rsspons.s to our FAX POLL Irom Juty 1992. B.tow a" the r..uns, ligursd by pere.ntag•.

Some p.rr:.ntag.s will not add to 100% as mors than on. answ" was giv.n.

1. Do you feBI attorneY' have an image problem in America?

100% Yes 2% No 0% Maybe 2. Do you leel attorneY' have an image problem in Artansas?

87.5% Yes 2". No 12.5% Maybe 3. I! you answered "yes" to efther 1 or 2, why do you think the problem exists?

27% False Information 28% Unfair blame placed by other professionals SlY. We don1live up to what we should 32% other, please comment Comm.nts Inelud.d: "Ignorance 01 public" "Syst.m .ncourages d.eeit" "Bad publicity" '700 many bad apples" "Gen"al lack 01 honesty and character" 4. Do you believe lawyers in Arkansas are honest?

30% Yes 40/. No 68% Not Always 5. Do you believe they work hard to lollow the Model Rules at Prolesslonal Conduct 16% YBS 11% No 70% Not Always 6. Do you think they know what the Model Rules of Prolesslonal Conduct are?

54% Yes 46% No 7. Do people tell you lawyer jokes?

14% Incessantly 68% Dnen 18% Seldom O%Never 8. Are you onended by lawyer jokes?

11% Yes 63% No 27% Sometimes 9. Do you tell lawyer jokes?

45% Yes 25% No 32% Only It It's I really good one!

With 56 respons.. to the tast FAX POLL, we a..ume the issue at the I.gal prolession's image is an important concern lor our "aders. On. answer s"m.d to stand oul - the lact that 57% of those "sponding said they lelllh. ,.,.on lor the prolession's image probl.ms was thaI lall/'fers don1 tive up to what they should. In addition, 70% said that they didn't think lawyers in Arkansas always worked hard 10 tallow the Mod.t Rules 01 Prolessional Conduct. The lollowing questions are loflow¡ups to last iSSUe's FAX POLL.

1. Do you think the Model Rules 01 Professional Conduct are strict enough?

6. Do you think "lawyer advertising Is weI! monilored? __ yes

7. Do you think "lawyer advertising should be restricted more? __ yes

_ _ no

no

2. Do you think enough ethics classes are taughl in Arkansas law schools? __ yes

9. Do you think the Supreme Court should be Involved in helping the image of attorneys in Arkansas? _ _ yes

no

no

3. Do you think punishment for violations of the Model Rules is fair? __ yes

__ no

8. Do you fhink the organized bar should be Involved in helping the image of attorneys in Arkansas? _ _ yes

__ yes

no

10. Do you defend the legal profession when talking with nonlawyers? _ _ yes

__ no

no

somefimes

Note: With ,II the criticism the Presidential administration has had 01 the legal syst.m, we thought the tollowing w" interesting: 63% ot those responding were not oi/end.d by tall/'fer jokes. 57% 01 those voting lor Bush said i'es" wh.n asked it they told lawyer jokes, 19% said "only if it., reafly good one!" at those voting lor Clinton, 35% responded i'es" and 39% said "only if its a "afly good one!"

P.S. If you had to vote today, who would you vote for?

380/. a. George Bush 55% b. Bill Clinton 5% c. Ross Perot 2% None of the above

4. Do you advertise your professional services in the Yellow Pages? __ yes

no

5. Do you think "lawyer advertising" helps or hurts the image of the profession? _

helps

hurts

__ no effect

11. Do you think a public service campaign would help the image 01 lawyers in Arkansas? __ yes

no

These questions do not lend themselves easily to yes and no answers so please feel tree to attach a sheet of your comments. We not only welcome, bul seek them!

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

If ills broke, Iells fix it.

By Paige Beavers Markman

If every time you provided the kind of response you gave to my last "Letter from the Editor," [think [ could just die and go on to heaven (a bit presumptuous probably). Of course, I djdn't really think it was one of my more sterling efforts, to the point of asking an "advisor" if she thought it would even be interesting to lawyers. Obviously, we stumbled upon an issue that very much interest and concerns lawyers in Arkansas.

I devoured the articles and letters you sent, and also the FAX POLLS. If you didn't see the FAX POLL, take a look at the results on the previous page of this issue. You will find that the column and the answers to the poll are intertwined in several ways. First of all, there is the whole concept of "image." An overwhelming majority of respondents thought lawyers have an image problem, in the nation and in Arkansas. Perhaps a bit more subtly, another issue arises. My father told me from the time I was a child that you had to Hke yourself before anyone else would like you. (This along with "No one ever said Hfe would be fair," "If you can't pay cash for it, you can't afford it" and one of my personal favorites, "Because I said so.") Along with liking yourselves, we have to trust ourselves and those we work with. The responses to the FAX POLL seem to indicate a disHke of lawyers by lawyers and definitely a distrust of lawyers by lawyers. Perhaps this is part of the problem. I'm reminded of the now infamous words of Rodney King "Can't we all just get along?" Could it be that some overhauling of our attitudes toward each other could be a starting place for improving not only the image of the profession, but more importantly the reality of working in the profession. Please read the Letters to the Editor. Many of them offer insightful commentary and several also give suggestions towards healing the problem. Please fill out your new FAX POLL, the answers are important to continue the dialogue we've started. And I'm asking that all of you think about what you feel needs to be done to rectify some of these problems. What can the organjzed bar do? What can the Supreme Court do? Is there legislation that should or shouldn't be passed? Is part of the answer a pubHc service campaign?

Send us your ideas. Something is broke, let's fix it.

•••• P. S. In May of this year, The Arknnsas Lllllll)er was again awarded the Bronze Quill Award given by the International Association of Business Communicators for excellence in the field of communication. Though I get to keep the plaque, I recognize the fact that it would not be possible without those lawyers who generously contribute their time and expertise to write the articles that continue to win awards like this one. Thank you!

4 ARKANSAS LAWYER

OCTOBER 1992

VOLUME 26, NUMBER 4 PUBLISHER

Arkansas Bar Association EDITOR & ART DIRECTOR

Paigt BtavtTs Markman DinaorofPRYMarktting

ARKANSAS BAR ASSOCIATION 400 W. Markham lilde Rock, Arkansas 72201 OFFICERS President John P. Gill President-Elect E. La.mar Pettw Secrcary -T reasurcr Rodney E. Slater Executive Council Chair ROPlind M. Mouser Executive: Director William A. Marcin Assistant Executive Director Jud;'h G... y

EXEClITlVE COUNCIL Joe Benson Sanford lksheaf William Clay Brnil Thomas M. Carpenter

Michael H. Crawford Boyce R Davis Vincent Fosler,Jr. Stephen A. Geigle D~we W. Harrod Henry C. Kinslow Roben Lynn Lowery Jerry c. POst j. Thomas R>y Eddie H. Walker, Jr.

Robe=rt E. Young

EX路OFFICIO

In This Issue:

4 Letter from the Editor 7 Letters to the Editor 9 A Delayed Tribute to Archie House 11 Disciplinary Actions 14 President's Message 15 Law Practice Management 16 Three Years & Counting: A Report on CLE in Arkansas

20 Environmental Ethics: A Lawyer's Plea

24

James H. McKenz.ie

By Harry S. Ashmore

By John P. Gill

By Jerry Schwartz

By Christopher Thomas

By Don. F. Hamilton

COVER STORY: AJustifiable Peremptory: The Oxymoron of Jury Selection

By Thomas Carpenter

29

Young Lawyers' Section Column

By Lucinda McDaniel

30

Law Office Technology Review

By By Barry D. Bayer & Benjamin H. Cohen

32

In Memoriam

33 36

Law, Literature & Laughter

John P. Gill

E. lamar P~rus

By Paige Markman

Rodney E. Slater

ResaHnd M. Mouser Lucinda McDanid

The ArnnsilS Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar AMociation. Second class postage paid at Litlle Rock. Arkansas.

POSTMASTER: send address changes to The ArunAS Lawyer. 400 West Markham. UttJe Rock.

Arkansas 72201. Subscription price to nonmembers of the Arkansas Bar Association $15.00 per year and to members S10.00 per year included in _Mual dues. Any opinion expressed herein is that of the aulhot. and not necessarily that of the Arkansas Bar AS5ociation or The Arkanus uwyer. Contributions to The Arkansas lawyer are welcome and should be sent in two copies to EDITOR. Arkansu Lawyer, 400 West Markham.

Little Rock. Ark.nsas 72201. All inquiries regarding advertISing should be sent to The ArkanAt Lawyuac the above addre8S.

The Oeveloping Law: Third-Party Legal Opinions: Has Some Order Come Out of the Chaos?

43

Executive Director's Report

44 45

West Publishing Unveils WINI

46

Arkansas Bar Association CLE Calendar

Book Reviews

By Victor A. Fleming

By John S. Selig & Christopher Barrier

By William A. Martin

LETTERS Editor's Note: Obviously, we touched a

nerve witlr tire last issue botlr from tire Letter from tire Editor and tire FAX POLL. Following are the letters received since the

issue dated July 1992. Many of tlrese letters refer to Irelpful and illteresting articles. If you would like a copy of any of tire articles mentioned, please call Paige Markman at

375-4605 or (BOO) 482-9406.

Dear Editor: In response to your "Letter From The Editor" in the july 1992 issue of The Arkansas Lawyer, ] do not see any real issues addressed by the dinner party guests. Therefore I propose a dialogue on the question: Is the human condition improved by the American legal system?

This would hopefully establish an objective for the existence of the system.

I believe both sides should really listen to one ,mother as to where the system has both succeeded and failed and, more importantly, how we cannot agree on its faults and buttress its strengths. On the other hand, if we cannot agree that improving the human condition or something to that effect should be the main objective of our legal system, why keep it? Your grandfather's observations on the legal system seem to me to agree with that proposition.

Let me start the discussion by saying, in my opinion, the practice of law in this country does easily as much harm to the human condition as it does gOCK!. I base my conclusion on two main beliefs.

First and foremost, the system is made up of people and, therefore, reflects the present state of evolution of social organizations and what society considers desirable for its immediate comfort and pleasure. In other words, the legal system is as much a product of this society as it is a cause of of society's problems. Thus its characteristics are based on the belief that if somebody wins, somebody also has to lose. This is the core belief of people who cause lawsuits. (Notice I did not say "file lawsuits.") They either think the courts will force someone to succumb to their ideas of what is "fair, right and just," or they refuse to look for an amicable solution in compromise in the hope their adversary will not want to incur the expense of a lawyer to get anything changed. In other words, "plaintiff' can be either the bully or the victim. Our present laws do little to discourage such selfish and covetous thinking. Thus we have doctors who refuse to treat certain patients, parents who try to destroy each other using their children as the battlefield, and many other atrocities. In

TO

THE

EDITOR

fact, how many times have entities refused to act in the best interest of the health and safety of the citizens that potential plaintiffs cannot afford the expense and time out of their lives to pursue an equitable remedy in court?

Who are the biggest offenders? I nominate insurance companies. Who created these monsters? Judges who have told us for decades to get insurance to finance monetary compensation for human suffering. So who is the real offender? Who started it? I suggest we not even discuss who is to blame. Rather let us address this situation positively and prospectively.

Which leads me into belief number two. Lawyers have a lock on the whole system. Any legislature is more than likely comprised predominantly of white, male attorneys. They pass laws which are enforced, prosecuted, defended, and judged by attorneys. While the gender and complexion of attorneys has changed in recent years, it is still dominated by white, male attorneys. Yet the vast mojority of people who are affected by these laws have their families, their finances, their sanity, and maybe even their very lives at stake. They don't care about "The System." They just want to get on with their lives and sleep peacefully at night. We in the legal profession tend to lose sight of that. As a result, attorneys get caught up in "The System and often ignore the human suffering caused by playing "The System."

This leads us to want to "win" by whalever means possible and use "The System" to outmaneuver the party opponent regardless of the effect on the human condition of the parties involved.

Have you ever said to a client, "Don't worry. That's the way the system operates. It just takes time. There's nothing we can do about it?" If your answer is in the affirmative, I submit you are part of the problem. Solution? Let's let the non-lawyers in. The possibilities are endless. And before you try to tell me why this idea won't work, let me ask you who we are supposed. to be serving and how are we doing? But don't bring me a lawyer's response to this question. How do the people who are supposed to be protected by this system feel? If they don't believe it is working, we have a recipe for anarchy. Anarchy is a pretty drastic prediction, you say? Were you standing in Los Angeles the night of the Rodney King verdict when you formed that belief?

For the record, I do not want to live in a country that does not have a legal system at least as good as ours. Your grandfather said it very well when he H

linked a livable society to laws and lawyers. I merely suggest we refocus our objectives on the good of the people.

Our first chance to do so comes up this November.

J. Dennis Devine, Little Rock

Dear Editor: I read your excellent Letter from the Editor in the Arkansas Lawyer of july.

I'm running for president of the ABA, and the problem you reflect in your Letter is a disturbing one that the profession has to address.

I am enclosing a short piece I just wrote which presents a defense in layman's language. The accusations against the profession are many and so often wrong as the examples in your letter illustrate. But refutation is hard to put in a few words. It's only taken 6 words to say "The world is flat" but a lot more to prove it's round.

In any event, I don't believe lawyers will cause civilization to fall tcx:J.ay - it's already tomorrow in Australia. jerome j. Shestack, Philadelphia, PA Dear Editor: I read with interest your letter in the july 1992 issue of The Arkansas Lawyer entitled "Is There A Defense?" I am attaching for your review a copy of Chopter 9 of Gerry Spence's 1989 book entitled With justice for None. Perhaps these pages will shed a little light on the issue raised in your letter and provide you with some ammunition for defending our profession at your next dinner party.

Russell B. Winburn, Fayelteville Dear Editor: As a practicing lawyer in East Texas who has been on both sides of the docket, I read your editor's letter in the july 1992 publication with great interest.

I have experienced the same lawyerbashing cocktail talk on many occasions by doctors and/or relatives to doctors. I am currently a director of the Texas Trial Lawyers Association (the majority of which are plaintiffs attorneys). In an effort to obtain hard facts on whether or not medical malpractice lawsuits playa factor in rising health costs, the Texas Trial Lawyers Association, the Texas Medical Association, and the Texas Hospital Association jointly paid for a study from Larry Tooo & Associates of Round Rock, Texas.

1 enclose a copy of an article appearing in the Texas Lawyer appearing July 20, 1992, that reports the finding of this joint study. Hopefully,

LETTERS this will give you factual ammunition for the next cocktail participant who declares war on lawyers for rising health care costs.

C. Dry Patterson, Daingerfield, TX Dear Editor: Enclosed you will find a copy of an article published in the Dallas Morning News last week. J thought you might find this interesting regarding the claim of "Ms. Sweetpea" that lawsuits are the cause of the high cost of health insurance.

You will note the study financed by both the Texas Medical Association and Texas Hospital Association as well as the Texas Trial Lawyers Association found that medical malpractice adds only 1 percent to the cost of health care.

I trust you will find this information useful.

E. Ben Franks, Texarkana, TX Dear Editor: Your "children of doctors" group in your Letters from the Editor column was reacting emotionally to the lawyer issue, not factually. In response to your request for "ammo" to use in dealing with folks like this, J elm enclosing a copy of my article which will appear in the Fall issue of the UALR Law journal.

I've spent 6 years gathering this information and wrote the article after I had a gutful of hearing and reading misinformation about lawyers.

But one may ask, how does someone without access to accurate information about lawyers deal with the arguments coming from the mouths of those such as your "'children of doctors"' group? I would ask them how they know that what they are repeating is true? I would ask them where do they get their information? When did they get it?

Who, or what, was the source of information, originally? etc. 900/0 of the time they will acknowledge that they just "read" it or "heard" it somewhere. In other words, they are just repeating gossip. If they will admit that to be the case, fine - at least they are being honest.

But, don't let them get away with trying to substitute gossip for facts.

Go get 'em!

David H. Williams, Little Rock

Dear Editor: I read with a great deal of interest your "'Letter from the Editor"' in the july edition of The Arkansas Lawyer.

Recently I was a guest in the dining room at Chenal Country Club. Directly across the fairway, you are blessed with a view of the huge and elegant homes of Doctors A through Z.

8 ARKANSAS LAWYER

OCTOBER 1992

TO

THE

EDITOR

A leisurely drive around the fairways of Pleasant Valley Country Club affords one a view of the huge and elegant homes of Doctors Z through A. Rarely does one find a lawyer in that position.

It seems to me that the high cost of health care and insurance can be found in said doctors' own back yards.

Judge Harlan A. Weber, Litde Rock Dear Editor: The july, 1992 issue of The Arkansas Lawyer was a pleasure to read. I was especially impressed with the "Letter From the Editor," john Gill's President's Message (I will not call him "Mr. john" or "'Mr. Gill" but J might call him "'Mr. President" from time to time). Lucinda McDaniel's column titled "Lessons in Tolerance" was thought-provoking a~ was the article by j.D. Gingerich and Warren Readnour reviewing the 1990 Arkansas Judicial Elections. And Associate Justice Robert L. Brown did the Bench and Bar a distinct service with his insightful article about life on the Arkansas Supreme Court.

Keep up the excellent work!

Wendelll. CriHen, little Rock Dear Editor: Walter Wright and Ark Monroe's article on recycling in Arkansas was interesting, informative, and well-written.

However, in discussing "public policy issues" the article also reflects the authors' bias, or rather, as happens to many of us in the legal profession, the bias of their clients.

It is a bad thing, Messrs. Wright and Monroe say, for the government to be involved in recycling services when a private sector facility offers the same service. This would unfairly pit a government subsidized recycling operation against a private recycler operator "which must pay for its equipment without the help of government subsidies."

So far, so good.

But isn't it inconsistent of the authors on the same page to endorse a 30% tax credit for commercial recyclers? Recyclers have private sector competitors, too, and the difference bctwcen a tax credit and a "government subsidy" is often only a matter of perspective.

Lawyers Wright and Monroe may have a similar problem in criticiZing bottle return-deposit laws as adding "artificial value on beverage containers" and therefore skewing the recyclables market.

The merits of beverage container deposits are certainly debntablc, but those who

urge ADPC&E to apply the 30% tax credit "'liberally"' should not be heard to carp about the government creating "artificial value."

Indeed, as evidenced by the very legislation Messrs. Wright and Monroe so ably describe, the Arkansas Legislature has decided that necessary recycling will not be accomplished by market forces alone and that governmental encouragement is required. IneVitably this entails adding "value" to recycling activity in general. Monetary grants and tax credits are only a couple of obvious examples of such value.

However, the question whether that value is "artificial" might depend in large part upon the cost of the alternatives to recycling - landfills and incinerators.

Those costs, both direct and indirect, can be expected to be large.

Perhaps we should ask ourselves, then, whether more than bureaucratic grants and tax breaks for professional recyclers should be done to encourage recycling. For example, aside from generalized (however sincere) concern about the environment, the typical household or small business has little incentive to separate and "recycle" its waste. In many instances their incentive is against recycling, since they must pay for garbage collection anyway.

Until we make recycling almost as convenient and relatively inexpensive as taking out the trash, we shall merely be dabbling in it. Of course, if our public policy is simply to encourage the economic development of commercial recyclers, the dabbling approach may be fine.

From a strictly commercial prospective, it may be unprofitable to encourage an oversupply of the "product" and drive the price of recyclables down, at least in the short term.

But if we really want to slow the expansion of land filling and reduce incineration - and if we want the most credible recycling policy, one that engages support at multiple levels - we should take more than short-run commerce into account and we should consider more than grants to other government units, and we should avoid weird outcomes such as making it a felony to leave the state after sending leaves to a landfill (or, in all seriousness, that apparently prohibits commercial or municipal composting facilities, Ark. Code Ann. ยง8-6-220).

We should, instead, try to make it as cheap and easy to recycle something as it is to throw it away. Our existing statutes are not there yet.

N.M. Norton, Jr., little Rock

A Delayed Tribute to Archie House

By Harry S. Ashmore

Archie House lived to be a hundred, and had been pretty much out of circulation for a good many years before he died in JlUle. At his memorial service he was fondly remembered as one of the familim

sights in the old, low rise downtown that has long since vanished beneath the Little Rock skyline. The news of his passing reminded me of the days when I occupied an office in the building that housed another vanished landmark, and could watch his passage down Louisiana Street in his seersucker suit and flat straw hat en route to lunch at the Little Rock Club, then situated at ground level around the comer on Capitol Avenue.

Archie was in his prime when I knew him, the senior partner in the Rose Law Firm and a ranking member of the city's establishment, which he frequently discomfited with his wry humor and abiding scorn for the pompous. But he never lost the aura of his salad days, when he was one of the young blades who gathered with their ladies at the old Boat House on the river bank where the Excelsior Hotel now stands. As old men they would remember the time he won a bet by donning a knee-length bathing suit and diving off the Main Street bridge.

Thinking of Archie brings to mind a term that isn't often heard these days, perhaps because the breed has become so rare. He was a gentleman of the old school who combined social grace, wit and compassion with the unassailable integrity that distinguished his professional life.

I had occasion to see Archie in action after I joined the Arkansas Gazette as executive editor.

He was the newspaper's attorney, and I quickly found that he was devoid of the undue caution that often afflicts lawyers

advising clients on questions that involve deep and rancorous divisions of public opinion.

This was a matter of critical importance as the Gazette became the target of bitter attacks for its stand in support of the Supreme Court's Brown decision ordering desegregation of the public schools. In 1957, when Governor Orval Faubus seized Central High School to bar the entry of nine black children, this culminated in an advertising and circulation boycott orchestrated from the Statehouse.

Archie had taken his own stand as cOlUlsel for the Little Rock School Board.

On its behalf he announced immediately after the desegregation decision carne down on May 17, 1954: "It is our responsibility to comply with federal constitutional requirements and we intend to do so when the Supreme Court of the United States outlines the methods to be followed."

When segregationists in the legislature began pushing for creation of a state sovereignty commission to challenge federal authority he warned of its futility and destructive potential. He was borne out when Faubus adopted. the "interposition" theory under which he seized and ultimately closed the city's high schools.

The week before he surrounded Central High with National Guard troops, the governor appeared at a closed meeting of the School Board to demand that it initiate action in state court, where he could guarantee an order to cancel admission of the black children. "Under no circumstances will the Board enter into collusion with a state agency to counteract the federal court order," Archie told him. "Well," Faubus replied, "I will still get a court suit A suit will be

filed, and the judge will order you to delay."

The governor got his order from a tame chancery judge, but it served. only to precipitate the constitutional crisis that brought federal troops to Little Rock.

The brief flare of mob action and the bizarre political maneuvering that followed made the headlines, but the real significance of the confrontation lay in the series of court decisions that vindicated Archie House.

In adopting the "massive resistance" strategy advocated by diehard segregationist leaders Faubus rejected the moderate Little Rock school desegregation plan that had withstood all previous challenges in the federal courts.

His defiant use of the state militia reopened the litigation, and when the case reached the Eighth Circuit Court of Appeals its six-to<lne decision declared: "We say that the time has not come when an order of a federal court must be whittled away, watered down, or shamefully withdrawn in the face of unlawful acts of individual citizens... " All nine justices of the Supreme Court signed the order upholding the circuit court ruling, and the black children remained in Central High under the protection of federal troops sent in by President Eisenhower.

Faubus reacted by closing all the city's high schools at the opening of the next term, directing the School Board to transfer their physical assets and tax income to a newly created Little Rock Private School Corporation.

The Supreme Court responded with another unanimous ruling barring "evasive schemes for segregation." Without tax resources the "private" school was

see "House," page 14

DISCIPLINARY

WILLIAM

A.

MURPHY

William "Bill" A. Murphy, Sheridan, Arkansas, was issued a letter of caution for violation of Model Rules 1.3 and 8A(d) as a result of the Arkansas Supreme Court's Per Curiam granting appellant Randy Winkle's motion for a belated appeal.

Mr. Murphy belatedly tendered the record to the clerk of the court in the appeal of his client's criminal conviction.

RALPH

C.

GOZA

Ralph C. Goza, Camden, Arkansas, was issued a letter of caution for violation of Model Rules 1.3 and 8.4(d) as a result of the Arkansas Supreme Court's Per Curiam granting appellant Willie

ACTIONS

Atkins motion for a belated appeal.

When notified of the clerk's refusal to lodge the transcript Mr. Goza took no further action. The defendant filed a pro se motion for a belated appeal which was granted.

G. B.

COLVIN

III

On June 15, 1991, the Arkansas Supreme Court affirmed the Committee's action against G. B. Colvin III, Dermott, Arkansas. Mr. Colvin was suspended from the practice of law for six months for violation of Model Rule 1.3 as a result of a complaint filed by Tony Regi nell i.

While representing Mr. Reginelli on a complaint seeking damages for injuries received in an agricultural

THE FIRM OF

DAVIS, COX & WRIGHT is pleased to announce

JOHN

D. NICHOLS

Formerly Law Clerk to ChiefJudge G, Thomas Eisek, United States District CourtfOr the Eastern District ofArkansas

and

WILLIAM

B. PUTMAN, IV

Formerly Law Clerk to ChiefJudge H. Franklin Waters United States District Court fOr the western District ofArkansas have joined the firm SIDNEY P. DAVIS, JR.

TIM E. HOWELL

WALTER B. Cox

DON

A. TAYlOR

TILDEN P. WRIGHT, 111

PAUL

H. TAYlOR

CoNSTANCE G. CLARK

JOHN D. NICHOLS

WM. JACKSON

BUTT, II

WILLIAM B. PUTMAN, IV

KELLY CARITHERS

19 East Mountain Street P. O. Drawer 1688 Fayetteville, Arkansas 72701 Telephone (501) 521-7600

accident, Mr. Colvin failed and neglected to respond to the defendant's interrogatories and requests for admissions within the time allowed by a court order. The lawsuit, which previously had been non-suited by Mr. Reginelli's prior counsel, was dismissed with prejudice. Mr. Colvin did not advise his client of the court's order to comply with discovery, the failure to respond or the dismissal. Mr. Colvin, based on his opinions that the probability of prevailing on Mr. Reginelli's claim was negligible or nonexistent and that he could do greater service in the court appointed representation of criminal defendants, stated he made a conscious decision not to answer either the requests for admissions or the interrogatories.

ROBERT

F. MOREHEAD

Robert F. Morehead, Pine Bluff, Arkansas, was issued a letter of caution for violation of Model Rules 1.4(a) and 8A(d) based on the complaint of Albert J. Martin.

In his affidavit, Mr. Martin stated that Mr. Morehead represented him at trial in July 1987 on charges of aggravated robbery. Mr. Martin was convicted and sentenced to imprisonment for a term of forty years. He advised his attorney of his desire to appeal. Mr. Morehead orally advised the court and requested an appeal bond. Mr. Martin was unable to post bond and was incarcerated in the penitentiary. Subsequently, he wrote his lawyer several letters inquiring about the status of his appeal but received no response.

Approximately two years after his conviction, Mr. Martin contacted the offices of the Arkansas Supreme Court and learned that the record was never lodged in the appeal of his case. He then filed a pro se motion

DISCIPLINARY

for belated appeal but it was denied forfailure to file within eighteen months of the judgment of conviction.

Mr. Martin filed a petition for postconviction relief in the circuit court alleging ineffective assistance of counsel in perfecting his appeal. A hearing was held in November 1990.

The court found that Me. Morehead had not withdrawn as attorney of record; Mr. Martin had made timely request for a belated appeal; and, Mr. Morehead had not filed a motion for belated appeal but should do so. Mr. Martin later contacted the circuit judge to inform him that no motion for belated appeal had been filed.

Again, on May 10, 1991, the trial court entered an order directing Me. Morehead to file or attempt to file a belated appeal. The lawyer declined to do so. In September 1991, Mr. Martin filed a pro se motion for belated appeal relying on the later date of his post-conviction relief filing. His attempt was unsuccessful.

Mr. Morehead's affidavit of response admits representation of Mr. Martin at trial. His response indicated that he requested the setting of an appeal bond following conviction as was his routine practice. Mr. Martin,

ACTIONS

his wife, his pastor, and a representative of the N.A.A.C.P., which had provided part of the legal fees, met with Me. Morehead to discuss the merits of an appeal. It was concluded that the evidence of guilt was substantial and an appeal would be unsuccessful because of the apparent lack of error in the proceedings. No notice of appeal was filed. Approximately three months after conviction, at the complainant's behest Mr. Morehead filed a motion for reduction of sentence. That action was unsuccessful. In September 1989, Me. Martin filed a malpractice suit against his attorney in jefferson County Circuit Court. Mr. Martin alleged the failure to perfect an appeal as his ground for relief. In April 1990, the trial judge found no wrongdoing on the attorney's part and dismissed the suit. In january 1990, Mr. Martin had filed his petition for post-eonviction relief. In a hearing in November 1990, the Lincoln County Circuit Court found that Me. Morehead had not formally withdrawn as attorney of record and that Mr. Martin made timely request for a belated appeal. Although the judge directed the lawyer to file for a

belated appeal he resisted on the grounds that an appeal was not timely requested by the complainant and his legal obligation for such was terminated after thirty days of the conviction; that the adversarial lawsuit by Mr. Martin created a conflict precluding the lawyer from representing him; and, that to file a motion for belated appeal at that time would be a violation of the appellate court rules. Me. Morehead pointed ou t that the trial judge, in a subsequent order of August 5, 1991, stated that he was confident there was no reversible error in the defendant's trial but he did not want to deny the defendant's possible avenues of redress. Mr. Morehead responded to the court's directive and declined to file for a belated appeal.

The trial court subsequently appointed other counsel to assist Me. Martin.

CLIFFORD

M.

COLE

The Arkansas Supreme Court Committee on Professional Conduct has reinstated to the practice of law Clifford M. Cole of Memphis, Tennessee. The reinstatement was effective july 20, 1992.

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PRESIDENT'S

MESSAGE

The Lawyer Jokels On You, Friend

By John P. Gill

Sooner or later folks telling lawyer jokes are going to realize that they, not lawyers, are the punch line.

As] see it, one of the lawyer's jobs is to remind joke tellers of this truth.

Everybody likes a good joke. Humor is good for our health; however, lawyer jokes are filled with spite.

People who tell lawyer jokes hate lawyers, because they dare to stand up for the freedom of all Americans, be they Exxon, or a black seamstress who didn't want to ride in the back of the bus, or a murderer, or an

environmental group seeking to take private land.

Lawyers have never been loved, nor should they be. Respected yes, but not loved. Once lawyers are loved, then we are not doing our job.

Lawyers for the Exxon Valdez were not loved when they sought to protect Exxon from some environmental claims which were not the result of its pollution. The lawyer who made sure Rossa Parks did not have to sit in the back of the bus was not loved, except perhaps by his client. The lawyer for Gene Simmons was not loved when he sought to provide a fair trial after his client was tried in the newspa per.

Nor was the lawyer for the National Park Service loved, particularly by the Buffalo River land owners. Yet all of these unloved lawyers did their job. Not all of them won, but, contrary to Vince Lombardi, winning

is not anything in this profession. It is merely a result, and in some cases, winning is even a fluke. Fairly and quickly resolving the dispute is what coun ts in this profession.

So what's all this got to do with lawyer jokes? The people who tell lawyer jokes like only beautiful people. They don't like big oil companies polluting the environment. They don't like blacks refusing to sit in the rear of the bus.

They don't like mass murderers.

They don't like anybody taking their land for public use. And if they don't like these types, they sure don't like the lawyers who are called upon to protect their rights, be they constitutional, statutory or common law. These joke tellers are frustrated with the system that lets the guilty go free; that "bankrupts" their accounts receivable; and that lets the manufacturer be punished with million dollar "punitives" for injuring the consumer. You and I understand due process, punitive damages and the bankruptcy laws, but most Americans really do not. If these concepts are important, and especially if due process and other constitutional rights are important, then all Arkansas lawyers have an obligation to keep the public informed about these important concepts of American freedom.

One way we can educate the public about freedom is to stop the

next lawyer joke in mid-sentence and say something like: "The lawyer joke's on you friend. I know you think your joke is funny, but when you make fun of lawyers, you make fun of freedom, you make fun of the people who protect the rights of the minority against the majority. Whether that minority is Exxon or Rossa Parks.

We have this system in America because that's the only way we can remain free. So if you don't like lawyers who are keeping us free, then you'll soon lose you r freedom because you could be laughed out of the courtroom the next time you are arrested, or injured, or have a

divorce, or buy a lemon."

Jonesboro lawyer, Bobby McDaniel, one of Arkansas' outstanding trial lawyers, said recently that he tells people when they want him to hear a lawyer joke, "I don't want to hear your joke because I'm proud of my profession and I'm proud of what] do." That's an excellent response to lawyer jokes.

Any lawyer worth his license is supposed to be able to talk on his feet, so the next time you hear a lawyer joke, start talking on your feet. Stand up for the profession which protects individual liberty. I see that as our duty.

Tell the truth about what your profession is doing every day to

insure freedom and stop human suffering, for example: Truth: Last year more than 1,600 private attomeys in Arkansas volunteered to participate in free legal services or judicare programs operated by the Legal Services program. That's one third of the lawyers in this state participating in that one program alone. Thousands more provided free legal services to the elderly and the poor and the minorities.

No other group in Arkansas can equal that record. One third of the bankers don't give away their services - nor do grocers, newspaper reporters, farmers or unions.

So much for the attack; what about damage cuntrol? To keep the honored practice of law from being a joke, there are three simple rules: Rule 1. Put the client first. Rule 2. Put the client first. Rule 3. Put the client first.

Here is what you and I said under oath to become licensed attorneys: I will support the Constitution of the United States and the Constitution of the State of Arkansas, and I will faithfully perform the duties of attorney atlaw.

I will exhibit, and I will seek to maintain in others, the respect due to cou rts and judges.

I will, to the best of my ability, abide by the Code of Professional

Responsibility and any other ethics standards proclaimed by the courts, and in doubtful cases I will attempt to abide by the spirit of those ethical rules and precepts of honor and fair play.

I will not reject, from any consideration personal to myself, the cause of the impoverished, the defenseless, or the oppressed.

I will endeavor always to advance the cause of justice and to defend and keep inviolate the rights of all persons whose trust is conferred upon me as an attorney at law.

No banker, grocer, newspaper reporter, farmer, union member, nor anyone else in Arkansas is required to take such an oath in order to perform his or her job. just living our oath before God will stop lawyer jokes.

As I said, we have to have a sense of humor for a healthy life, but lawyer bashing must stop, not because I'm thin skinned; you don't try lawsuits for three decades with thin skin. We've got to stop lawyer jokes because they are an attack on the fundamental rights of Arkansas citizens.

Remember: Friends don't let friends tell lawyer jokes.

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did.

In the course of this debacle the outraged citizens of Little Rock rallied to force a series of elections that restored the School Board to local control, and the schools were reopened under the original desegregation plan. But in the course of the wrangling worn down Board members replaced Archie as counsel, sending to court lawyers more given to temporizing than the one who was being proved right at every critical juncture.

I was outraged, and wanted to make a issue out of his dismiss.1l, but Archie would have no part of any public complaint. He deserved no special credit

for simply doing his duty, he insisted.

The important thing was that the law had prevailed, and the school district was on its way to dismantling the dual system that consigned black children to schools that were separate but manifestly unequal. The new legal precedents invoked by Faubus's intransigence insured an orderly transition for Little

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LAW

PRACTICE

MANAGEMENT

Budgeting ...

The Time to Start is Now!

By Jerry Schwartz

Many articles and books have been written on law firm financial management over the last twenty years and each of them basically has told uS that the responsibility of management in the financial area is in planning and control.

Noted accounting authors Philip E. Fess and Carl S. Warren define the two terms as follows: Planning is the process of selecting realistically attainable business objectives and formulating the general policies and the specific directions needed to achieve the objectives. Control includes the procedures designed to assure that actual operations conform with management's plans. The budgeting process is an integral part of planning and control. On the planning side it provides for the establishment of financial goals, and on the control side it provides for the comparison to actual results.

There are three major components to a law office budget: Fee and Other Income; Expenses; and Net Income. Most law offices make light of the budgeting process, because they say it is difficult or impossible to budget for fee income. However, it is a figure in the budget which can be arrived at through process of elimination and then tested for reasonableness.

The budget process can start from the bottom up by having each owner submit a plan to reach a satisfactory level of personal compensation within the firm's compensation plan. This forces some personal planning on the part of the owners and helps to adjust the expectations of the firm's income generation capacity.

The next step is to review the expenses of the office and make projections for the next year based on the information at hand. Once the amounts from the personal plans and the expenses are compiled, an amount of Fee and Other Income needed to provide for the two components can be determined. The reasonableness of the Fee and Other Income needed to support the personal plans and expenses can then be tested. Billing rates, billable

hours, realization rates, other cash requirements and non-cash expenses can be analyzed to determine if the Fee and Other Income budget is reasonable. If the Fee and Other Income component is reasonable, all three components of the budget are in place for proper financial planning and control for the next fiscal year.

Budgeting is like a good wine or aged cheese, it improves with age. Initial budgets are generally weak; however, they do improve each year. The time to begin the process in now, so the plan is in place before the year begins.

Therefore, control of the law office finances can begin from day one of the new fiscal year. Effective planning and control are requisites of successful operations.

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We have reached the end of our third year of the minimum continuing legal education requirement which was adopted by order of the Arkansas Supreme Court in 1989. It is time to pause and reflect. This article will dwell on statistical information derived from the reporting period which began july 1, 1990 and concluded june 30, 1991. Candidly, I am not sure what these statistics will tell us. I surmise that they might be of interest to the Arkansas Continuing Legal Education Board, the judges and lawyers of this State, as well as the sponsors of continuing legal education programs.

The reason for the statistical emphasis of this article is practical. The statistics are immediately at hand and easy to relate.

On the other hand, what I choose to describe as the "effectiveness" of the CLE program is not subject to ready determination and discussion. Actually, I believe it is premature to try to make such a determination, and I suspect that some of the statistics related in the following paragraphs do have some information relevant to the subject of "effectiveness."

The admittedly vague issue of whether the CLE program is achieving its goal, i.e., "improving the compelence and professionalism of practicing lawyers and judges," will require passage of time, completion of surveys, and addition of resources to evaluate the CLE effort.

Nonetheless, I believe we should forge ahead with a recitatinn nf some statistical information in various areas.

COMPLIANCE As a preface to the statistical analyses which follow let me first provide a record of the degree of compliance with the minimum CLE requirements. For the initial reporting 16

ARKANSAS LAWYER

OCTOBER 1992

period, which began March 1, 1989 and ended june 30, 1990, a total of 45 in-state Arkansas attorneys were suspended. This total amounted to slightly over 1% of the in-state attorneys, which was a figure consistent with the suspension rate of most other jurisdictions.

Subsequently, four of those attorneys were reinstated. For the second reporting period, july 1, 1990 through

approximately 27% of the total. Of these out of state conferences, Charlottesville, Virginia, reported the most hours 2,481. However, as is often the case with statistics, this number is misleading. Particularly, this is the location where most military attorneys get their continuing legal education hours, and most of the courses are extraordinarily long (one is accredited for 208 hours) which leads to a disproportionately high number of CLE hours reported at this location by a relatively small number of attorneys.

This anomaly is replicated in Reno, Nevada, where a relatively small number of Arkansas judges attend very long courses. Accordingly, Reno is the second most popular out of state site, reporting 1,177 hours. Next in line comes Washington D.C., with 1,135 hours, and New Orleans, with 777 hours.

The remaining out of state conferences were given

june 30, 1991, a total of 22 in-state attorneys, and 85 out of state attorneys, were suspended. Of those, 13 were reinstated. In almost all cases, attorneys who were reinstated had to pay reinstatement fees ranging from $100.00 to $250.00.

CLE HOURS BY LOCATION For the reporting period july 1, 1990 through june 30, 1991, a total of 60,859 hours of CLE were reported to the Office of Professional Programs, which acts as the secretariat for the Arkansas Continuing Legal Education Board.

16,706 of those hours were acquired outside Arkansas,

at over 160 other cities spread across the Country.

The remaining hours of continuing legal education which were reported to the Office of Professional Programs totalled 44,153. These hours were acquired at approximately 35 different locations in Arkansas. Hence, 73% of the total continuing legal education hours were presented within the borders of Arkansas. The distribution of those hours, within the State, based on the Court of Appeals districts, is as follows: 1st DISTRlCf (Northeast, including Memphis) 1,495.25 hrs.

2ND DISTRICf (North-Central) 691.50 hrs.

3RD DISTRICT (Northwest) 5,035.50 hrs.

4TH DISTRICT (Southwest-induding Hot Springs) 9,457.00 hrs.

5TH DISTRICT (Southeast) 468.00 hrs.

6TH DISTRICT (Pulaski and Perry Counties) 27,005.75 hrs.

A quick perusal of these numbers shows tha t CLE is being offered, for the most part, where the lawyers are.

Obviously the 6th District overwhelms all others with approximately 60% of the total. This is not remarkable in that the "market area" for Little Rock and North Little Rock logically includes the counties of Perry, Saline, Lonoke, and Faulkner.

Probably, White and Jefferson are also part of the Sixth District "market area." These counties, including Pulaski, have over 2,400 resident attorneys, which is 51% of all attorneys residing in Arkansas. In the Northwest, an area densely populated with attorneys, the figures confirm that large numbers of CLE hours are being offered to meet the needs of lawyers in that area. Please note that the number for the 4th District includes Hot Springs. A significant portion of that total is the result of the Annual Meeting of the Arkansas Bar Association, which reported over 5,000 hours of CLE credit out of the meeting conducted in June of 1991. Regrettably, it is clear very little CLE is offered in the sparsely populated areas of NorthCentral and Southeast Arkansas.

MARKET SHARE ANALYSIS This segment of the report turns to the issue of which sponsors are providing the bulk of CLE programs.

As stated earlier, a total of 60,859 hours of CLE were reported to the Office of Professional Programs for the reporting period beginning July 1, 1990 and ending June 30, 1991.

During that period, the top 10 producers of CLE provided 41,687 of those hours, or 68% of the total. The

respective contributions of those sponsors are as follows: 1. ARKA SAS INSTITUTE FOR CLE (AICLE) 17,000 hrs.

2. ARKANSAS BAR ASSOCIATION 6,920 hrs.

3. ARKANSAS TRIAL LAWYERS ASSOCIATION 4,100 hrs.

4. NATATlONAL BUSINESS INSTITUTE 2,800 hrs.

5. ARKANSAS ADMINISTRATIVE OFFICE OF THE COURTS 2,909 hrs.

6. JUDGE ADVOCATE GENERAL'S SCHOOL 2,555 hrs.

7. NATIONAL JUDICIAL COLLEGE 1,412 hrs.

8. ARKANSAS LEGAL SERVICES SUPPORT CENTER 1,395 hrs.

9. OFFICE OF THE PROSECUTOR COORDINATOR 1,362 hrs.

10. UNIVERSITY OF ARKANSAS AT FAYETTEVILLE 1,234 hrs It is encouraging to see that seven of the top 10 providers are located in

Arkansas. Among them, a total of 34,920 hours of CLE was offered. This calculates to approximately 57% of all CLE hours acquired during the reporting period in question.

After accounting for the top 10 producers, the remaining hours were liberally distributed among over 400 other CLE sponsors spread across the United States of America.

SUBJECTS COVERED At the outset of the minimum continuing legal education program, the Office of Professional Programs instituted a procedure to identify the subject matter contained in each approved program. This was a subjective task, especially when the program covered a variety of subjects, such as the annual meeting of the Arkansas Bar Association. In those instances, our only alternative was to describe the program as "generaL" Twenty subject classifications were developed, and as each program was

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approved, it was placed in one of those categories. I trust you will understand that individual judgement calls were required in many instances. Consequently, the following information should be viewed with that in mind.

The hours reported for the major subject categories are as follows: 1. GENERAL

14,181 LlTIGATION 10,769 6,307 COMMERCIAL JUDIOAL 4,881 LABOR 4,880 FAMlLYLAW/ SOCIAL SECURlTY 3,607 7. CRlMlNAL 2,617 8. TRUSTS & ESTATES 2,054 9. TORTS 1,974 10. ENVIRONMENTAL 1,961 11. BANKRUPTCY 1,887 12. CONSTITUTIONAL LAW 1,550 13. TAXES 1,392 14. REAL PROPERTY 1,153 2.

3.

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The remaining six categories Administrative Law, Ethics, Insurance, Law Office Management, Other, and Lawyering Skills

accounted for the remaining hours.

CONCLUSION The first paragraph of this writing reflected my uncertainty about the value of statistical analyses of CLE. However, statistics, even viewed with a jaundiced eye, can provide useful management information and, perhaps more importantly, can support more informed judgements upon which decisions can be made concerning administration of the CLE program and consideration of future

what can, or should be, done about this. Anecdotal evidence that I have acquired from attending numerous programs, and receiving a few letters, persuades me that most lawyers have been attentive and have derived benefit from the minimum continuing legal education program. Many of the comments I have received indicate that the lawyers are impressed with the continuous improvement of written materials and that they are taking those materials back to their

improvements to the program.

offices to use as resource materials.

First, it is evident that almost all lawyers are complying with the minimum continuing legal education requirement. Experience has revealed that most suspended attorneys do not seek reinstatement because they have opted out of the practice of law and a CLE suspension is meaningless to them. This phenomenon is in line with the experience of other states.

Second, although most lawyers attend enough programs to acquire the minimum hours, I will be the first to admit that such attendance does not mean that those attorneys are learning anything. I really don't know

However, I have observed more than one attorney reading the newspaper, or in some instances, sleeping during the course of a CLE program.

Whether those instances are acts of defiance, indifference, or a boring

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ARKANSAS LAWYER

OCTOBER 1992

presentation, is unclear to me.

Third, some consideration needs to be given to the issue of geographical dispersion of courses, especially in North-Central and Southeast Arkansas. The relatively sparse lawyer populations of those areas makes it difficult for sponsors to attract a sufficiently large attendance to justify the cost of an on-site program. Perhaps there are alternatives that can be considered to address this difficulty.

Fourth, ethics is being given inadequate attention. In response, the Arkansas Continuing Legal Education Board has directed the Office of Professional Programs to initiate project to determine ways and means to increase availability of such programs. Subsequent to t1,at effort, the Board may consider recommending to the Arkansas Supreme Court that a mandatory ethics requirement be adopted.

Fifth, as soon as time and resources allow, efforts must be undertaken to determine, to the extent possible, whether the CLE program is meeting its fundamental objective, i.e., the requirement of Rule 4.(C) - "The course must contribute directly to professional competence of attorneys and judges, or to their education with respect to professional or ethical obligations." Many states have attempted to make such a determination, with varying degrees

of success. In cooperation with the Arkansas Continuing Legal Education Board, the Office of Professional Programs will draw on those states' experiences and attempt to develop some measure of "effectiveness."

In sum, my perception is that things are going reasonably well, considering the magnitude of this undertaking. Allow me to emphasize that these perceptions are my own and do not necessarily reflect the position of the Arkansas Continuing Legal Education Board, or any individual member thereof. The present Arkansas Continuing Legal Education Board is composed of: John Stroud of Texarkana, Chairman; H.T. Moore of Paragould; Blair Arnold of Batesville; Ron Harrison of Fort Smith; Judge H.A. Taylor of Pine Bluff; Bob Ross of Little Rock; Jerry Malone of Little Rock; Donna Gay of Little Rock; and Judge Robin Mays of Little Rock. The Ex-Officio members of the Arkansas Continuing Legal Education Board are Wayne Boyce, President of AICLE; Dean Leonard Strick man of the Universi ty of Arkansas at Fayetteville Law School; and Dean Howard Eisenberg of the School of Law at the University of Arkansas at Little Rock. They join with me in assuring the Judges and lawyers of this State that every effort will be made to continue improvements in the CLE program until the elusive goal of "improving the competence and professionalism of practicing lawyers" is met, or at least closely approached. -

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ABOTAAward Wm. R. "Bill" Wilson, Jr. was recently named the first recipient of the American Board of Trial Advocates Civil Justice Award. The award, established last year, was given to recognize that person who exemplifies all the virtues of the Seventh Amendment and, during their lifetime, have contributed to the protection of the right to trial by jury in civil cases.

Wilson, a past president of the Arkansas Bar Association, sits on the National Board of Directors for the American Board of Trial Advocates.

The group is an invitation-only association of trial lawyers dedicated to fostering improvement in the ethical and technical standards of practice in the field of advocacy and to the preservation of the right of trial by jury. Eligibility for membership includes a requirement of a minimum of twenty jury trials to conclusion.

Other members of the Arkansas Bar Association active in ABOTA include Gordon Rather, who also sits on the National Board and Don Bacon who is the current President of the Arkansas Chapter.

Wilson was recognized formally far this achievement by the Executive Council of the Arkansas Bar Association during its August meeting.

WYE

A My studies in philosophy approximately 35 years ago can be summarized by two observations.

The first is contained in a quotation

p

BY DON F. HAMILTON

from Whitehead that "all philosophy is but a footnote to Plato," which I found to be true in studying the writings of the philosophers of western civilization. The second is, that while I learned much from the writings of philosophers and theologians about (1) our ethical relationship to each other, (2) logic, (3) the theory of knowledge, and (4) aesthetics, I learned absolutely nothing of our ethical relationship to the land. Any concern in that regard seemed to be lost in the history of the

the eyes of generations of Americans for centuries was viewed as merely a commodity to be bought or used to obtain its highest economic return or sold for a profit, or even thrown away if the land could not produce economic gain of some sort. My teachers from the first grade through high school emphasized that our natural resources were unlimited, which was the reason why America was so great.

When I grew up in LiWe Rock in the 1940s and 1950s, the ci ty was

native

our

merely an overgrown country town

forbearers referred to as "savages."

Finally, the notion that human beings had an ethical relationship to land was not even mentioned, let alone discussed in any of my economics or business courses in college; and in

with a rural atmosphere. There were nearby forests, creeks, and wetlands within a few minutes walking distance. Like many of my friends, I grew up with the beauty of nature as an everyday part of life which I took for granted.

I never knew how important the natural world had become to me until I came back home after being away for approximately nine years in college, military service in Korea, and then law school. When I returned home, I found that most of the natural world I knew as a boy was gone.

Americans

whom

law school, the only concern was title

and "highest and best use" in terms of economic return.

In a similar vein, my religious training was typical of the JudaeoChristian teachings about the Abrahamic concept of land, i.e. having dominion over the land and all of its creatures. After all, land in

Later, I realized that no other person would ever again know the beautiful areas, as I once knew them. Where once were located upland forests and creeks in the western edge of Little Rock, there are now residential subdivisions, drainage ditches, shopping centers, and acres of paved parking lots to accommodate the seemingly unending flow of cars and trucks. Where once were wetlands and a bottomland forest on the south bank of the Arkansas River, we now have a developed park and a golf course, sometimes empty and sometimes full of people and cars.

When I began the private practice of law and working long hours in the 19605 and 70s, it did not take too long for me to realize that there were at least as many answers in the beauty of nature as in all of the books ever written or words ever spoken. So it was that I developed an attachment for such beautiful natural areas in Arkansas as the Buffalo River, Hurricane Creek, Lost Valley, Twin Falls of Big Devils Fork and Long Devils Fork which unite and flow into Richland Creek, and so many other parts of the Ozark Mountains, as well as our bayous and bottomland hardwood forests in the Delta.

Henry David Thoreau had his

Walden Pond, Aldo Leopold had his shack near the banks of the Wisconsin River, Sig Olson had his Listening Point in the boundary waters of Minnesota, and Ed Abbey had his desert solitiare and rim rock canyons in Arizona and Utah. These were all places of natural beauty and solitude to them. Such places are necessary for the human spirit in all of us, whether these places are located in our backyard or a few minutes or miles away. These places help us to put life in perspective and they help us to appreciate the need for a land ethic.

Thanks to the writings of Thoreau, Emerson, John Muir, Theodore Roosevelt, Aldo Leopold, Sig Olson, Ed Abbey, Wallace Stegner, and Michael Frome (among others), countless Americans (including myself) have developed, or are attempting to develop, a land ethic which recognizes that, just as we have an ethical obligation to each other as human beings, we also have an ethical obligation to the land as a living organism. This ethic is based upon love, respect, and admiration for land and a high regard for its value.

I

mean

uval ue

in

ozone layer, rainforest destruction, loss of the old growth forests in the Pacific Northwest, ocean pollution, vanishing species, human population growth, and pollution of our land, water, and air by toxic substances.

The local issues in Arkansas are many. Animal waste, solid waste, loss of wetlands and protection of air and water quality in our state seem to me to rank among the most important.

These issues are real, and the problems related to them will not go away if we ignore them. The politicians do not have the answers, and we do not even know all of the

environmental laws ever enacted

court decisions ever rendered, or the political promises ever made.

Whether in our voluntary civic activities or the day-to-day practice of law, members of the legal profession have an opportunity to make a lasting benefit to society in promoting the land ethic. We should not fail the public in this regard any more than we should ever stray from the pursuit ofjustice. _

the

philosophic sense" to quote Aldo Leopold. In my opinion, the development of this ethic on this beautiful planet we call "Earth" is our greatest challenge today.

We are the trustees of our environment and we all are responsible for the health of the land.

We must be good stewards. By health, I mean the capacity of the land for self-renewal so as to adequately provide for the existence of all communities of life irrespective of their commercial value. One thing appears certain: all parts of the biotic community are essential for the healthy functioning of our environment which we do not now fully understand and perhaps never will. We should never forget the first rule of intelligent tinkering. That rule is to save all the pieces.

There are important national and local environmental issues which are facing us and which must be resolved. These national issues include global warming, threats to the

above gross national product. Each business and private citizen not only need a periodic financial audit, but also an environmental audit in order to minimize, if not eliminate, the adverse environmental impacts of doing business or simply living so that we can exist in harmony with the other diverse communities of life with which we share the land, the water, and the air. We must all practice good stewardship and wisely use the gifts of nature.

Lawyers are more able and beller qualified than any other professionals in society to promote the land ethic which we all need in order to deal with the environmental issues of today and tomorrow. Such a land ethic for our clients, as well as for us can accomplish more in protecting our environment than all the

questions to ask. Bu t each of us should do his or her part in some way to help solve these problems. Without a land ethic to help find the answers, we will fail. We can not allow that to happen for the sake of our children and future generations who will someday have that wonderful gift of life on this planet and the rare privilege of living in this beautiful place we call Arkansas.

Former Senator Gaylord Nelson, founder of Earth Day, suggested an agenda for action in his book, America's Last Chance. In doing so, he argued that there is a great need for the introduction of new values in our society-where bigger is not necessarily beller, where slower can be faster, and where less can be more.

This attitude must be at the heart of a nationwide effort whereby this country puts gross national quality

NOTE: Tlris article is based upo" tire autlror's remarks made at the Business!Ellv;rollmenfal

Ethics Campus Symposium held at the U"iversity of Cttltral Arkansas on April 9,

1992, whet! lit: appeared as a member of tire program pa"el sponsored by the UCA Pililosopiry Deportme,,'.

Do" F. Hamilto" is employed by Little Rock Wastewater Utility wllcre he has served as general counsel since 1990. Prior to that time h~ was ill private law practice sina 1965. when he became employed by House, Holmes, alld Jewell law firm ill Utile Rock. &fore tire" lie served as â&#x20AC;˘ l.w clerk to U.S. District Judge Gordon E. Young, deceased. He is a graduate of Vallderbilt Ulliversity ('58), ."d tire Ulliversity of Arka"sas Sclrool of /.pw ('63).

He MS speciJllized ill commercial, reDl esta~, and environmental law witl. emphasis all litigation. He was leod cOlmsel itl litigation on bell.lf of tire Utility wlriclr resulted ill tile recovery of S4.3 milliml as damages for the desigll failure of tile City of Little Rock's Fourche Creek Wastewater Treatment Plmlt.

John D. Rothman, Legal Director of Oklahoma Mediation / Arbitration Service, announces that three members of the Arkansas Bar Association have been appointed as attorney / mediators: ]. R. Buzbee Frank Haman Bart Virden Oklahoma Mediation / Arbitration Service is the sixth fastest growing private mediation service in the United States and has the eighth largest personal injury caseload of any public or private mediation forum in the United States. *

â&#x20AC;˘ Faulkner & Gray's Arbitration & Mediation Directory, 1992 Edition

22

ARKANSAS LAWYER

OCTOBER 1992

/Jane panel of the Fifth Circuit affirmed, creating a conflict with the Eighth and Ninth Circuit. The U.s. Supreme Court reversed.

The Court initially noted that Batson criteria for establishing discrimination was modified in Powers v. Ohio, 111 5.0. 1364 (1991). In Powers the Court allowed a defendant to raise a Batson challenge even though he was not of the same race as the excluded juror.

Reaffirming that the Equal Protection clause prohibits racial discrimination in jury selection, the Court then pointed out that such action forecloses a citizen's opportunity to participate in civic life. An individual juror does not have a right to sit on any particular petit jury...he or she does possess the right not to be excluded from one on account of race." Powers, 111 5.0. at 1370. Although Powers technically deals with standing, the thrust of the opinion is that an unconstitutional peremptory challenge denies the juror Equal Protection, not that the defendant is denied Equal Protection.

But, the Constitution protects individual liberty from government action.

Moose wdge No. 107 v. lrois, 407 U.S. 163, 172 (1972). If a lawsuit involves only private parties, where is the government action? Essentially, the U.S. Supreme Court concluded that the trial judge's acceptance of a peremptory challenge and notification that a juror is excused provides this nexus: The party who exercises a challenge invokes the formal authority of the court, which must discharge the prospective juror, thus effecting

the 'final and practical denial' of the excluded individual's opportunity to serve on the petit juror. Without the direct and indispensable

participation of the judge, who beyond all question is a state actor, the peremptory ch01llenge system would serve no purpose.

Edmonson v. Leesville Concrete Co ., 111 S. 0. at 2085.

This litany of cases establishes that a prosecutor's exercise of an unconstitutional peremptory challenge, as well as similar actions by parties to a civil suit, implicates the Equal Protection Clause. In state court, the Fourteenth Amendment provides the framework for this analysis. In federal court, the Equal Protection component of the Due Process Clause in the Fifth Amendment is used. See Bolling v. Sharpe, 347 U.S. 497, 498-500 (1954). At the end of its last term, the U.S. Supreme Court finally applied the restrictions in Batson to defense peremptories in criminal cases. Ceorgia v. McCollum, 1125.0.2348 (1992). So, counsel in all kinds of jury trials must take care to assure that peremptory challenges are exercised in a nondiscriminatory manner.

But, is this issue limited to racial discrimination? In Hernandez v. New York, 111 5.0. 1859 (1991), nationality - Hispanic - was equated with race. But, what about gender? What about religious affiliation? In the age of the Americans with Disabilities Act, what about mental retardation?

The Ninth Circuit has concluded that gender-based discrimination also violates Batson and cannot be

permitted. United States v. DeC ross, 960 F.2d 1433 (1992)(en bane). However, this conclusion conflicts with the Fourth Circuit. United States v. Hamilton, 850 F.2d 1038 (4th Cir. 1988); see also U.S. v. Hoelscher, 914 F.2d 1527 (8th Cir. 1990).

The question is compounded by the fact the U.s.

Supreme Court has never ruled upon the proper standard of review to follow in jury selection. While the Court has definitely held that racial discrimination is inappropriate, what other classifications are inappropriate? Does Batson apply only to race? What about the other classifications subject to strict scrutiny analysis - race, alienage or national origin? What about those classifications entitled to heightened scrutiny -e.g., gender? See Frontiero v.

Richardson, 411 U.S. 677, 686 (1973). Is religion entitled to Batson analysis? The Fifth Circuit has indicated that a discriminatory removal of Jewish veniremen violates Batson. United States v. Creer, 939 F.2d 1076, 1085 (1991). Conclusive answers to these questions must await further clarification by the U.S. Supreme Court.

One final issue is process: When should a challenge be made and what remedy should be afforded?

A contemporaneous objection is required to preserve a Batson challenge. United States v. Dobneys, 905 F.2d 1192 (8th Cir.1990). The Court also stated that the challenge should be made before the jury is sworn. Accord, Pacee v. State, 306 Ark. 563,567, 816 S.W.2d 856, 859 (1991). However, on at least one occasion, the Eighth Circuit has permitted a Batson challenge after the jury was sworn but before any testimony was taken.

Reynolds v. City of Little Rock, 893 F.2d 1004 (8th Cir.1990).

It is also clear that once the challenge is made the trial court must determine whether a prima facie case of discrimination has been established. This finding is a predicate to requesting race-neutral reasons for a peremptory challenge. However, there are a few cases in which opposing counsel has not been asked to provide a reason once the challenge has been made. But see, United States v. Ingram, 839 F.2d 1327 (8th Cir.1988).

In Ward v. State, the objection was made several times before reasons were requested. In Pacee the objection was not made until after several peremptories were exercised.

Rejecting an argument that Pacee's objection was not timely, the Arkansas Supreme Court noted that one peremptory does not suggest a pattern of discrimination.

Hence, an objection prior to swearing the jury is all that is required.

There is no valid reason to require a Bolson challenge to be made, or to hold a hearing, in the jury's presence.

Watson v. Slale, 308 Ark. 444, 451; 825 S.W.2d 569, 573 (1992). Once counsel believes that an objection should be made, the proper Course is to approach the bench. If the

trial court believes that some response is appropriate, then any subsequent discussion must be held outside the jury's hearing. This ANY TIME â&#x20AC;˘ ANY DESTINATION procedure has also been used in the federal system.

One final question relates to remedy. The early Batson cases arose after the fact. Therefore, the remedy was to remand the case to determine if race-neutral reasons could be provided for peremptory challenges. If not, a Appraisers Association new trial was ordered.

One early Fifth Circuit decision concluded George A. Tomlinson that the remedy was to seat the challenged 1089 Ind. Pk. Rd. 5011362-0421 Hellen M. Tomlinson juror. United States v. Forbes, 816 F.2d 1006 (5th Heber Springs, AR FAX 5011362-0174 Cir. 1987). This remedy is consistent with the logic in Edmonson since the "state action" was the acceptance of the peremptory challenge. So, if the trial court concludes that the peremptory challenge is being improperly used, the remedy is to prohibit such use and, thus, avoid an Equal Protection violation.

This remedy demands that Batson objections be raised and decided before the jury is sworn and before the other members of the venire are excused. Otherwise, the improperly excused juror may not be available, and the remedy would be limited to declaring a mistrial and to begin jury selection again.

None of the U.S. Supreme Court cases provide any assistance. In fact, the Court has repeatedly noted that the procedure to be followed is best left up to the trial courts. See, e.g., Powers v. Ohio, 111 S.C!. at 1374 ("It remains for the trial courts to develop rules, without unnecessary disruption of the jury selection process, to permit legitimate and wellfounded objections to the use of peremptory challenges as a mask for race prejudice.")

The key is that all jury trials are subject to Batson and its progeny. Hence, all trial lawyers and trial judges must be aware of its principles as jury selection starts. These principles, gleaned from the cases that have ruled on various Batson challenges, are not simple. For example, it may be appropriate to excuse a juror that lives near a defendant. However, the facially neutral reason for such a challenge is lost if a black juror is so excused, but a white juror is not. United States v. Wi/son, 884 F.2d 1121, 1124 (8th Cir.1989). It is, therefore, the duty of all counsel and trial judges to review these cases and to apply these principles. In other words, the peremptory challenge is peremptory in name only.â&#x20AC;˘

AIR CHARTER SERVICE

------M-a-ti~rcraft HMT

Thomas M. Carpenter is the City Attorney for Litt/e Rock. He received his J. D. from the University of Arkansas. He has written sf:1Jeral articles for The Arkansas Lawyer.

Reeo .. g aFirst Bank customer isnt as hard as

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ARKANSAS LAWYER

OCTOBER 1992

II

YOUNG

LAWYERS'

SECTION

COLUMN

To Establish Justice

By Lucinda McDaniel

We the People of the United States, in Order to form a more perfect Union, establish justice, insure domestic Tranquility, provide for tlte common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and Ollr Posterity, do ordain and establish this Constitution for the United States ofAmerica.

The second reason listed for the writing of the United States Constitution was to establish justice.

Although argument rages over whether to interpret the Constitution strictly as written by the forefathers or to adapt the Constitution to the advancements of modern society, surely the concept of justice has not changed in the 200 years since the writing of the Constitution. justice must have the same meaning to George Washington as President of the Constitutional Convention in 1787 as it does to us today. justice is universal and timeless. It is faimess, equity, impartiality. Or is it?

When I went to the dictionaries for formal definitions of "justice" I was surprised to find two definitions which may explain the drift in the legal profession from "justice" to what the Canons used to call the

zealous representation of clients with opposing counsel. justice is not within the bounds of law. Webster's served by objecting to defines justice as "the principle or interrogatories as technically vague ideal of just dealing or right action:'1 to avoid giving an answer which while Black's Law Dictionary will be damaging. defines justice as "proper The Preamble to the Model Rules administration of laws." 2 As of Professional Conduct explains attorneys, as officers of the court, we that the "lawyer seeks a result must hold to the first definition. lt is advantageous to the client but the ideal of just dealing or right consistent with requirements of action which causes uS to make honest dealing with others."3 This allowance for extenuating admonition goes beyond the circumstances in criminal cases. We definition of justice as proper listen to testimony before sentencing administration of laws to embody which may explain the actions and the ideal of just dealing and right which may temper the letter of the action. law in order to do justice.

As attorneys we all take an oath In civil practice, too many of us to support the Constitution.' That justify actions by rationalizing that, Constitution requires us to establish if it is not against the law, the Rules justice. justice is not just the letter of of Civil Procedure, or the Model of • the law. It is a moral and ethical Rules of Professional Conduct, it standard of what is right and fair. must be acceptable. That is not This was justice in Washington's justice. time and it must be justice in ours. justice is not served by first producing documents at trial with ·1 Webster's Ninth New Collegiate the explanation that although Dictionary, 655 (1987). opposing counsel phrased his or her '2 Black's Law Dictionary, 776 (5th ed. requests for production as broadly as 1979). possible, he or she "didn't ask for -3 Model Rules of Professional that." justice is not served by Conduct, Preamble (Adopted 1985).

'4 A.CA. §16-22-205 (1978) instructing witnesses not to speak

LAW

OFFICE

TECHNOLOGY

REVIEW

PaperWorks from Xerox PARC & the USC on CD-ROM

By Barry D. Bayer & Benjamin H. Cohen In the mid-70s we started hearing about the Palo Alto Research Center, a fundamental research laboratory owned and operated by the Xerox Corporation. Xerox PARC didn't build better copiers or even invent a better copier process. We don't remember Xerox successfully marketing anything in the microcomputer field, but somehow everything from Ethernet to acto languages to Windows and mouses seem either to have originated at PARC, to have undergone development at PARC, to have been inspired by work at PARC, or to have been completed by very bright people who worked at PARe. Xerox is apparently weary of developing other people's successes, wants to make money from PARC, and is bringing PARC prod ucts to market. In this column, we review PaperWorks, a program that turns a computer fax board into a versatile fax controlled fax switchboard. We haven't figured out exactly what we'd use it for, but then we were skeptical when a demonstration of the Xerox Star Computer first introduced us to icons and mouses.

PaperWorks PaperWorks requires a 386 or 486 computer running Microsoft Windows, at least 20 megabytes of hard disk space (but 40 megabytes would be better) perhaps 8 megabytes of memory, and a fax board from Intel, The Complete Fax or CEI proF AX. We tested the program with the Intel SatisFAXtion board.

30

ARKANSAS LAWYER

OCTOBER 1992

An automatic installation program warned uS when it couldn't find an appropriate fax board, or when it felt that we didn't have enough free memory or disk space to run the program. When we liberated an appropriate amount of space, the installation program installed PaperWorks and asked us about COM ports and area codes.

Three manuals and on-line help were readable and informative.

Good, tull free technical support is available weekdays from 8:00 a.m. to 7:00 p.m., Central time.

ThePe End The PaperWorks desktop includ~s the usual pulldown menus, buttons for sending or receiving faxes, "status lights" tn show what PaperWorks and the fax board are doing, and icons representing sub-windows for an "inbasket," /laction basket,"

recipients, DOS files, and a document index.

We entered the names, addresses and fax numbers of several clients into a recipient data base and organized them into distribution lists, making it possible to send the same fax image to a group of recipients with only a couple of clicks of a mouse button. We also used the program's file facility to make documents created by Microsoft's Word for Windows and Excel and WordPerfect for Windows available to PaperWorks for later transmission.

Although this part of the program worked easily, there was little, if anything, that we we could do with this software that we couldn't do with

our regular fax software.

The Fax Machine End A PaperWorks form has a bar, about a quarter inch high, across the top, a stylized PaperWorks Logo on the left and an array of small back and forward slashes on the rights.

The slash array tells PaperWorks how to interpret the rest of the form.

PaperWorks comes with four "universal"

forms for common

situations, but the user can also create customized forms.

Other parts of the forms include boxes for handwritten names or notes, an array of boxes ten rows down and ten columns across for entry of telephone numbers, larger boxes next to document names, recipient names, and similar items,

and an option password field. The user communicates with PaperWorks by putting an "x" or check mark in appropriate boxes, and sending a fax to the fax board.

When the fax board answers a call, PaperWorks looks at the first incoming page to determine whether it is a PaperWorks form, then follows the form's commands.

To order a stored fax to be transmitted, the user sends a fax asking PaperWorks to send a list of available documents. The user checks off the box for the desired document and faxes it back to PaperWorks. A minute or two later, that document is sent to the phone number marked on the form's 10 by 10 phone array.

Starting from Scratch If you leave the office and forget to

lake some forms with you, fax a blank piece of paper to your fax board and PaperWorks will send a "starter" form to the phone number listed on the blank sheet's header. The slarter form will let you order other forms, or get listings of various documents on the system. If you forget how to use the various PaperWorks forms, you can ask the system to fax hel p files to you, for your review.

A Solution Without A Problem?

We like PaperWorks. From the PC side, it works in a Windows minimized mode so it is never really a bother. If you expand the Window, PaperWorks becomes an easy to use fax board interface.

From the fax machine side, it is rather impressive to send a blank piece of paper, and receive the slarter form a minute later. The major question we have is when would a lawyer really need it?

Assume a lawyer is at an out of office meeting, and wishes to have a file sent to the meeting. Or the meeting results in a proposed draft contract, and the lawyer wants to send the hand marked draft, notes and all, to several different places for review.

If a secretary is on duty, a voice call back to the office should get things going. But what if she's at lunch, or the temp isn't familiar WiUl your hard disk? Or what if you're working on Saturday, although the rest of the office isn't. Or what if the documents are so secret you don't want the office staff to know about them? Or you leave your New York office at Noon and don't get to your Los Angeles hotel room until 10:00 p.m., but want to retrieve your messages, and the final draft of the document that didn't get finished until 3:00 p.m.

In these situations PaperWorks could perform a useful service. We're certain that there are many more. Yet we can't help thinking that once again PARC may have produced some elegant technology that just isn't commercial, yet. But if you already have a compatible fax board and enough memory and disk space, the $250 suggested list price for PaperWorks should make a fax board

a lot more versatile, at a very

reasonable cost.

Such a Deal!

In an era where Congress and the Federal Government seem to be viewed with even more public scorn than lawyers, it is a pleasure to report some positive news from Washington.

The Government Printing Office has announced publication of the 30,000 page United States Code on a single CD-ROM disk at a cost of $30.00. The price includes search software by Rockville, Maryland's Personal Library Software [nc., for both Microsoft Windows and MS-DOS. The CD-ROM will be as dated as the printed version - January 2, 1991, and will replace 28 basic volumes, plus supplements. Instead of purchasing the $600 paper version, you could get the CD-ROM and a good CD-ROM player, and have money left over for a quiet night out on the town. Plans are in the works to accelerate the publication cycle for both CD-ROM and paper, with a January 1992 version to be available early in 1993 and a January 1993 version in the middle of 1993.

Delivery of the first CD-ROM is planned for "Iate summer," but priority will be given to advance orders, which may be entered by fax.

Note SIN 052-001-00439-6 on your order.

We've been writing about the coming explosion of law office CORaM's for four years. Is it possible the future is finally here?

Details PaperWorks, Version 1.01.

Requires 386 or 486 based computer, 4 megabytes of memory, 20 megabytes free disk space (40 megabytes recommended) mouse, Microsoft Windows 3.0 or higher, SatisFAXtion, Complete Fax or Complete Communicator or CEI proFAX fax board. Price $249.95.

Xerox Corporation, 3400 Hillview Avenue, Palo Alto, CA 94303. Phone: (800) 432-9432 or (501) 651-7299. Fax: (800) 428-3329.

U. S. Code on CD-ROM. Effective date, January 2, 1991. SIN 052-00100439-6. Requires CD-ROM player, 1Search software requires IBM PC or compatible, MS-DOS 2.0 or higher.

Personal Librarian for Windows software requires computer running Microsoft Windows 3.0 or higher.

Price $30.00. Superintendent of Documents, P. O. Box 371954, Pittsburgh, PA 15250-7954. Fax orders to (202) 512-2250. (Payment by Visa, Mastercard, or GPO Deposit Account). For more information, call (202) 783-3238.

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IN

GEORGE

N.

HOLMES

George N. Holmes of Pine Bluff died in July. Holmes was a former member of the state House of Representatives. He was also a member of the American and Arkansas Bar Associations, the Trinity Lutheran Church, the Optimist Club and a delegate to the Arkansas Constitutional Convention beginning in 1969.

Memorials may be made to the church or a favorite charity.

Survivors inlcude his wife, Sallylu Bunn Holmes; two sons Richard Cade Holmes and James Douglas Holmes; a brother, three sisters and U"ee grandchild reno

RICHARD

MEMORIAM

RICHARD

M.

CECIL

PRIDDY

Richard M. Priddy of Russellvile died in July. Priddy served as Prosecuting Attorney and Minicipal Judge. He attended Arkansas Tech University and graduated from Cumberland Law School at Lebanon, Tennessee. He was a member of the First United Methodist Church.

Survivors include his wife, Mrs. Mildred Priddy; a daughter, Mary Silkenson; two brothers; a sister; six grandchildren and three greatgrandchildren.

Memorials can be made to the American Cancer Society.

A.

TEDDER

Cecil A. Tedder, Jr. of Searcy died in September. Tedder was a Circuit Judge in the 17th Judicial District.

Tedder was a staff sergeant in the U. S. Air Force from 1948 to 1952. He was a member of the American and Arkansas Bar Associations.

Survivors include his wife, Virginia Tedder; a son, Andrew G. Tedder of Buston; a daughter, Martha Patton of Searcy; his father, Cecil A. Tedder Sr. of Arkoma, Oklahoma; and two grandchildren.

Memorials may be made to the First Baptist Church of Searcy or to the Searcy Public Library.

F. GRAY You can't get closer to the isues than this.

Richard F. Gray, 62, of North Little Rock, husband of Judith Ryan Gray, Assistant Executive Director of the Arkansas Bar Association, died August 30, 1992.

He was a retired salesman and an Air Force veteran. Following his retirement he had devoted over 22,000 hours to assisting the chaplains at the Veterans Administration Hospital. Because of his caring and helpful approach, many of the patients called him "Chaplain Gray."

Funeral was at SI. Edwards Catholic Church with burial in Elmwood Cemetery, Morrilton, the city in which he grew up. Other survivors are a son, Mark Stephen Gray of California, Maryland, and a granddaughter, Lauren Gray.

Memorials may be made to the Arkansas Bar Foundation Roxanne Tomhave Wilson Scholarship Fund in memory of Richard F. Gray.

32

ARKANSAS LAWYER

OCTOBER 1992

At Lawyers Cex>peralive Publishing, we know our analytical legal research system is not complete without one vila I link - our field representatives. They

know whars available, what's affordable, and what resources will be of the greatest value to your practice, given your needs and markeL Right now, your local representative is

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LAW,

LITERATURE

&

LAUGHTER

Moppets Take Manhattan

By Victor A. Fleming

For a week in july, many Arkansas attorneys converged on New York, the Big Apple, amid the hoopla of the Democratic National Convention.

Mark Grobmyer was sighted, as were George jernigan, Webb Hubbell, Vince Foster, and Sam Perroni. HT. Moore didn't miss it, nor did Bill Trice. jerome Green was there, as was Maurice Mitchell, Lisa Farrell, Richard Mays, and many others, incl uding Bill and Hillary Clinton.

The C1intons had with them daughter Chelsea and a friend, Elizabeth, 12, of Little Rock. Rooming with Chelsea on the 14th floor of the Hotel Intercontinental, was an experience for Elizabeth. She dealt with the Secret Service agents ("You get used to it," she said). She met stars. She introduced herself to a former President. As an unidentified friend of the nominee's daughter, her picture was in papers from jackson to Boston.

After returning to Little Rock, Elizabeth was asked what she enjoyed most about being so close to the inner workings of democracy in process. She replied, "We got in the Hard Rock Cafe without having to stand in line. The same thing at Planet Hollywood, where we saw Arnold Schwarzenegger."

Liz's parents tagged along,

witnessing some of her adventures and hearing of others. Her father was with her, for example, when she met Chevy Chase. Before Chase could introduce himself, the gentleman from Little Rock said, "I know who you are." Then, turning to Chase's spouse, he said, And how are you, Mrs. Ford?" Elizabeth was embarrassed by her dad's repartee.

She was alone, however, when she wandered into Chelsea's parents' suite and encountered jimmy Carter.

"What did you do?" her mother asked.

She replied, "I walked up and said, 'Hi, I'm Elizabeth...'."

"What did he do?" her father asked.

"He said, 'Hi, I'm jimmy Carter'."

Early one afternoon Elizabeth's old man had retired to the lobby with a stack of newspapers. He was halfway through the the first paper when a security guard rushed up. "Please come quickly," she said, with urgency in her voice. "The Secret Service have just brought your daughter and Chelsea in on splints.

They had a fall at the Statue of Liberty!"

Liz's pop prides himself in remaining cool, calm, and collected in such circumstances. He knocked

down only two reporters en route to the elevator. Amid the press frenzy, he heard "broken leg," "sprained ankle," "emergency room."

What he encountered in the hotel

II

room was two giggling eighthgraders with ice packs on their knees and a pair of cardboard splints against the wall. Elizabeth was on the phone, "Yes, he just walked in," she said, giving him the receiver.

Perceiving there to be no serious injuries, he spoke to his wife: "Did she tell you about her fall?"

"I didn't fall."

"She didn't fall," he corrected

himself. "Chelsea felL" Chelsea laughed. "I didn't fall either."

"Neither of them felL" His calmness was disappearing. He hung up and listened to the girls tell the story. They had walked the 22 stories up to Miss Liberty'S crown, then raced down. "We hadn't had any breakfast or lunch," Elizabeth said, "and it was like 100 degrees outside.

When we got down, Chelsea's legs were like jello, and so were mine."

Leg cramps! Anyone who has engaged in stressful exercise without a warm-up can empathize, with the possible exception of Secret Service agents, who rushed the girls to a first-aid room, paged Dr. Drew Kumpuris at a restaurant, and

wheelchairs, so they put us on a Coast Guard boat with these huge life jackets," Elizabeth said. "They had to haul us out of the boat, up onto the dock."

On reaching dry land, they were whisked back to the hotel and sent to bed, where they realized how hungry they were. And, of course, by doctor's orders, they could not walk-a point they emphasized to Liz's dad before sending him to the deli for sandwiches.

Later in the afternoon an invitation came from some other Arkansas kids.

Chelsea and Elizabeth were welcome to go to the Holiday Inn for a swim (amid all its assets, the Intercontinental has no pool).

Whereupon, there occurred a medical

recommended bringing in a chopper

miracle,

to take the moppets to a Manhattan E.R. The Little Rock cardiologist thought this was contra-indicated for leg cramps and prescribed their return to the hotel for an afternoon of bed rest.

In wheel chairs, wearing their

"an amazing recovery."

splints, they were taken to the dock.

"We couldn't get on the ferry in the

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Background of Third-Party Legal _ ...... differing amounts of success. Those Opinion Report ("Report") a n d " " " ......... attempts have not been supplanted by , ~ Silverado's Report and Accord.

Legal Opinion Accord ("Accord") Third-party legal opinions Texas has produced a similar historically have generated " ' / ~ structure, but it is limited to great stress, uncertainty ,certam types 01 real estate and friction among/ -Q..~ transactions.

Other lawyers.

These ....~ ... ellorts are ongoing in opinions, which are ~ ,...-~ \ several states. typically given in ~\.' ~ A National Need certain business ~ The Silvertransactions such .~ ~ \ ado Conlerence, as loans,. mergers" ~ however, grew out acquIsitions and L ~ ';"""-' of an increasing securities ollerc--; , recognition 01 the ings, are â&#x20AC;˘ need lor action at addressed by the \ â&#x20AC;˘ the national level. lawyer to a person ~ The agenda 01 the who is not the client ~ ~ Conlerence was and opine on \ ~ limited to a discusvarious aspects of the ~ sion 01 most 01 the transaction.

V / traditional third-party Over the years" /) ~ legal opinions given in divergent practices and ~VE ~~ i private transactions. interpretations have As a consequence 01 developed as to how these , , \.. the Conlerence and later opinions should be given, what ........ ~ action by the Conlerence should be covered in them, and even ~ ~ participants who became organized what specific words and phrases ..... _ ~ as the Committee of Legal Opinions (such as "Actual Knowledge") mean.

01 the Business Law Section, an Language used in one part of the by James J. Fuld, a New York lawyer, exposure dralt 01 the Report and country may not be given the same in his article in the Bllsilless Lawyer Accord was submitted in February, meaning as the identical language in entitled "Legal Opinions in Business ]991. Following publication in the another part 01 the country.

Transactions An Attempt to Bring December 3], 1990 BlIsilless Lawyer When transactions involve entities Some Order Out 01 Some Chaos." 28 (46 BlIsilless Lawyer No. 51) and or assets in several states, lawyers BlIsilless Lawyer 915. (]973). receipt 01 comments, the Report and from each of those states may be Following Fuld's article and a Accord as originally dralted was involved and opinions may be companion piece in ]978, "Lawyers' amended, supplemented, and then required dealing with the laws of Standards and Responsibilities in approved in linal version by the several states, sometimes on behalf 01 Rendering Opinions:' 33 BlIsilless Council of the Business Law Section the same client. The opportunity for Lawyer 1295, various state and local in August 01199] and published in uncertainty has abounded, as well as bar associations studied the issue 01 the November, ]991 BlIsilless Lawyer a high potential lor conlusion and third-party legal opinions.

(47 BlIsilless Lalvyer 167). professional liability.

The Tri-Bar Association (an Copies of the Report and Accord It was against this background that organization of New York City's are also available from the American the gathering popularly known as the metropolitan lawyers), the Florida Bar Bar Association. (ABA Order "Silverado Conlerence" was Association, the Maryland Bar Fulfillment Sales Department, 750 convened in late May of ]989 by the Association, the Texas Bar North Lake Shore Drive, Chicago, Business Law Section of the American Association, and others adopted Illinois 60611 (Tel. 3]2/998-5555) for a Bar Association in Silverado, policies and proposed forms of legal cost of $]0 per copy for up to 10 Calilornia.

The conference opinions in varying degrees 01 copies and at a reduced rate as the represented an attempt, on a national comprehensiveness and with number 01 copies increase.) basis, to make some sense 01 the Concept of the Accord problems which lawyers lace in When adopted in an opinion, the giving third-party legal opinions.

Accord (which is the portion 01 the Early Efforts Report setting lorth the specilic rules The lirst real discussion 01 the and precepts) governs the opinion, scope 01 the problem was provided and the recipient's acceptance of the

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36

ARKANSAS LAWYER

OCTOBER 1992

"r LO:D ,

opinion has the result of establishing conclusively its acceptance of the governing role of the Accord. In order for the Accord to be adopted in an opinion, there must be an affirmative statement in the opinion that the Accord is being adopted. The Accord does not govern those opinions which do not expressly adopt it.

Premises of the Report The Report states that a third-party legal opinion ("Legal Opinion") is an expression of professional judgment on the part of the giving lawyer (called the "Opinion Giver" in the Report) on the various legal mailer expressly addressed in the opinio .

It does not cover matter not expressly addressed and a egal Opinion is not a warranty or a guaranty of results. The Report provides that an opinion governed by the Accord does not create a contract between the Opinion Giver and the recipient of the opinion (called the "Opinion Recipient" in the Report).

The Report's purpose is to provide a sensible and fair framework relating to opinions. However, the use of the Report and Accord is voluntary. The Report indicates that no implication should be drawn because of the failure to use the Report and Accord.

State and local bar associations are free to develop supplements as necessary to deal with unusual situations in their states, and the Report is designed for /;.uture use only. The Report and the Accord are not to be used as a bas) of judging opinions given in the past.. They' contemplate future use only by persons who are familiar with what is covered and is not covered by the Report and who agree to its use.

As a practical matter, however, it may take at least an informal agreement by lawyers in a state or metropolitan area to use the Report and Accord (as opposed to t ra n s ac tio n- b y- t ra n s ac ti 0 n agreements among participating lawyers) to begin a movement toward universal acceptance.

Structure of the Report The Report is divided into three main parts: I. The first part is the Legal

Opinion Accord itself, which contains a glossary defining the standard terms used in the Accord, and a general section which deals with a variety of subjects such as what law is addressed, what the Opinion Giver may rely upon and whose opinion it is. The Accord then deals with substantive areas, including the remedies opinion, qualifications to the opinion, other specific elements of the opinion, and limitations to the opinion.

II. The second part of the Report is an illustrative Opinion Letter designed to show how the Accord works in a typical transaction. It provides language which can be used to direct that the Accord shall govern that opinion. This form is a good starting point when drafting an opinion covered by the Accord.

It is important to remember that while the Accord deals with a number of areas, it is possible to draft an opinion which is covered by the Accord insofar as the Accord deals with certain areas and still have other parts of the opinion not covered by the Accord because the Accord does not address those areas.

Ill. The final part of the Accord represents the most significant additions to the law and lore dealing with third-party legal opinions. That section provides various guidelines for the negotiation and preparation of those opinions and is applicable whether or not the parties consent to the Accord oveming all or a ?,grtion of the legal opiruDnltself.

Those guidelines should be carefully read since they represent the vie of the Commiitee on Legal Opinions of the Business Law Section of the American Bar Association (and perhaps of the Business Law Section itself since the council of that Section endorses the Report) on what rules should govern the negotiation and preparation of opinions.

It can be expected to be seen as an indication of the professional standard for lawyers in giving opinions. It may be cited by the other lawyers in a business transaction and perhaps even opposing counsel in situations where the court is called

upon to review the circumstances surrounding the giving of an opinion.

Standards for Negotiation In the negotiation portion, the guidelines provide among other things that Legal Opinions should deal with questions of law and questions regarding legal judgment relating to specific matters within the professional competence of the person giving the opinion. That means that legal opinions should not normally cover finan ial statements, forecasts, appraisals, environmental reports and the like.

This also means that legal opinions should not be given as to matters of fact, but where information uch as the existence of threatened or pending legal proceedings is requested, that kind 0 information can be given by a con rltll/tion rather than an opinjon. The guideli\les codify the "Golden Rule" of opinions - that is, you should never ask for an opinion that you would no e willing to give if you had the requisite experience and knowledge.

The guideli'les also suggest that costs and other considerations are appropriate in determining what opinions should be given. Bearing in mind that the purpose of an opinion is to assist the person to whom the opinion is addressed in performing diligence on the matters covered by the 0 inion, the costs of provi ing the o inion can be an important consideration in determining its scope.

The guidelines suggest that reqyests for third-party opinions shoulO be proviaed early in the negotiation of the transaction, and where it is necessary to discuss what items should be covered in the opinion, the parties should negotiate with each other in good faith.

Overbroad Requests to be Avoided The guidelines deal at some length with what are appropriate opinion req uests and responses. The guidelines state that certain matters such as broad opinions dealing with foreign qualification in all jurisdictions required should be avoided. It recognizes that an opinion to the effect that the client is in

compliance with all laws is generally The Accord establishes that the inappropriate and provides that acceptance by the Opinion Recipient certain kinds of disclaimers (even of the Opinion Letter (i) is conclusive where qualified by a lack of back-up of the Opinion Recipient's investigation or other knowledge), acknowledgment that the opinion indicating that the lawyer has no addresses all of the legal issues to be knowledge as to various unfavorable dealt with in the opinion and (ii) legal or factual mailers should not be signifies that the recipient concurs in requested. the adoption of the Accord to govern The guidelines also deal with the opinion and any modification certain questionable opinion requests included in the opinion. incl uding those where it may be more The Accord operates on the appropriate to obtain a certificate or ,~ssump ions that the Opinion Giver other document from the Secretary of .nas not taken any action that State to establish certain matters. Also constitutes fraud or a deliberate covered in this category are deceit and that coverage on a evaluations of litigation )and particular issue does not mean that concurrence with legal opinions of the Opinion Giver would be always other counsel. willing to give an opinion on that Form, Format and Consent issue in every transaction.

Finally, the guidelines deal with Legal Opinion Accord Definitions The way the term" Accord" is the preparation of third-party legal opinions and recognize that no defined makes it clear that the particular form or format for these commentary and technical notes kinds of opinions has universal which accompany each section are not acceptance. It discusses the various included within the Accord, but are kinds of opinions, including designed merely to provide guidance. explained or reasoned opinions, "Law" is defined in the Accord as unqualified or non-explained meaning the statutory, judicial and opinions, and certain Jetters that do

administrative decisions and rules and regulations of the governmental agencies of the Opining Jurisdiction.

The definition also includes Local Law - that is, the statutes and ordinances, decisions and rules of government agencies below the state level as well as judicial decisions, if they deal with those matters.

However, Section 19 of the Accord makes the point that unless explicitly addressed, the Opinion Leller does not opine on mailers of Local Law. The term "Opining Jurisdiction"

means tha t ju risd iction whose applicable law is specifically addressed in the opinion. The definition recognizes that there may be more than one Opining Jurisdiction - for example, the United States and the State of Arkansas.

The "no breach or default opinion" is defined in the Accord as language that states in essence that the "execution and delivery by the client of, and performance of its agreements in, [a specified transaction document], do not (i) violate the basic

~

not happen to be opinions at all because the requested opinion cannot be given.

The guidelines implicitly suggest that where the person giving the opinion has a financial or other interest or relationship with the client, such interest or relationship should be disclosed if the interest is material. And, the guidelines state tl,at in order to give the opinion at all, the lawyer giving it must satisfy the ethical obligations to the client to obtain its consent to do so.

(See, for example, Rule 2.3 of the Model Rules of Professional Conduct which is applicable to Arkansas lawyers.)

While consent to give the opinion may be inferred from a provision in the transactional document signed by the client which calls for an opinion, nevertheless, the lawyer should consider the need to review the opinion letter and its implications with the client before delivering it.

Legal Opinion Accord Basic Concepts 38

ARKANSAS LAWYER

OCTOBER 1992

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organizational documents of [the client), (ii) breach, or result in a default under, an existing obligation of the client under [other agreements to which the client is bound] or (iii) breach or otherwise violate any existing obligation of the client under [any order of a court]."

The "no violation of law opinion" basically provides that the execution, delivery and performance by the client of its obligations under certain documents do not violate statutory law and regulation.

The Accord defines a "remedies opinion" as an opinion that states that a ceria in document is enforceable against the client. It slates that you do not need to provide (as most people do) the phrase "in accordance with its terms" since that is implicit.

Preliminary Legal Opinion Accord Issues Jurisdictions: Section 1 provides that the opinion may be limited to the law of as few or as many jurisdictions as are desired or, where it is appropriate to do so, just to specified slalutes or other laws of a particular jurisdiction. The

significance of stating what jurisdiction or jurisdictions or specific laws occurred means that the affirmative statement has the effect of

excluding all other laws not expressly staled.

It is not required that a specific disclaimer of other laws be included in the Opinion Letter. If you specifically state that the law of Arkansas governs the opinion, you are not including the federal law of the United States. Federal law, like the law of any other jurisdiction, must be expressly slated.

The corollary to the express language of Section 1 is that in the event no particular jurisdiction is stated as being addressed, then the law of all jurisdictions that may be applicable are covered. Thus, it is important to be explicit in stating what law or laws are to be covered in the Opinion Letter itself.

The commentary to Section 1 makes it clear that the reason Local Law is typically excluded from an opinion is a combination of cost and of lack of availability of that law for

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However, in many instances, it is important to the Opinion Recipient that certain mailers of local law be addressed, such as zoning. In those instances, the Accord makes it clear that the opinion may cover Local Law if (a) the Opinion Recipient desires that, and (b) the Opinion Giver is willing to include it in the opinion.

However, it is necessary to have specific statements as to the articular Local Law covered in order for it to be covered at all.

Scope of Inauiry: Section 2 deals with the scope of inquiry of the Opinion Giver.

Historically, an opinion has recited that the Opinion Giver has reviewed a number of documents, usually starting with the Articles of Incorporation or other organizational documents of the client, continuing through t:l:te transactional documents or documents being opined on, and usually concluding with "such other documents as the attorney deems appropriate in the context of the transaction."

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The premise of Section 2 is tha t there is no necessity to state what the Opinion Giver has reviewed, and the Opinion Recipient may assume that the Opinion Giver has reviewed whatever documents he or she deemed necessary in order to render the opinion. Unless there is an express statement that the scope of inquiry has been limited to certain documents, the mere recitation of the documents reviewed does not alter that assumption.

Source of Reliance: Pre-Accord, lawyers were concerned with misunderstanding between the Opinion Giver and the Opinion Recipient as to wha sources of information the Opinion Giver could rely upon in giving the opinion, such as certificates, public records and affidavits. No clear standard was articulated as to those sources upon which the Opinion Giver could rely absolutely, those upon which the Opinion Giver could with some kind of investigation, and those sources upon which the Opinion Giver could not rely at all. Sections 3

rer

through 6 of the Accord bring light to this previously dim area.

Section 3 provides that the Opinion Giver may rely on information contained in what are called "Public Authority Documents" which, generally speaking, are documents obtained from persons such as the Secretary of State, which establish certain information on file with that official's office. Section 3 goes on to state that the Opinion Giver can also rely on 路nformation provided by officers of the client or others if the provider of that information is the Opinion RecipIent' or one that the Opinion Giver reaSOnably believes is "an appropriate source for the information."

In all of these events, the Opinion Giver may rely on this information without (1) any investigation, (2) including in the opinion a statement that he has relied on this information in giving the opinion, or (3) any analysis of the underlying data.

However, the Opinion Giver may not rely on information which makes

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a statement of any legal conclusion or issue unless that information is either (1) provided in a legal opinion by another counsel and that reliance is stated in the opinion letter, or (2) set forth in a Public Authority Document, or (3) furnished by the Opinion Recipient, or (4) contained in a representation in one of the transaction documents, unless the Opinion Giver states that he or she is relying on this information in giving the opinion. ossible Assumptions: Section 4 of the Accord deals with assumptions an the circumstances unde~ which the Op路 ion Giver can rely on assumptions in rendering his or her opinions. It provides that unless the assumption directly (or as a practical effect) states a legal opinion which the opi ion is expreSSing, the Opinion Giver may rely on the following assumptions without any investigatfon: (a) natural persons have the legal capacity to engage in th transaction where those naturill persons are either the client or some<.J.ne who is involved on beHalf of the chent; (b) the client as lawful y acquired title to the proper 路nvolved in ffie transaction; (c) all parties 0 have taken sue step as may be necessary to au thorize the transac~on and delive the,. transaction documents, I (d) all copies furnished the Opinion Giver are accura te and complete and all signatures are genuine; (e),insofar as the tr nsaction is concerned> no fraud, dress, undue influence, or mista e of fact exists; (f) JI parties h e entered into the agreements a d the transaction in good fai th an(l the transaction does not vio)ate any covenants of fair dealing nor is it unconscionable; (g) there are no understandings in existence that would modify, amend or otherwise affect the terms of the transaction documents; (h) all requisite law is in full force and effect unless there is a reported decision, a particular statute, regulation or agency action;

(i) all other agreements are enforceable; or (j) the client will refrain from taking any action which will result in a violation of law in the future or constitute the breach of any other agreement or court order.

There is no necessity to specifically include any or all of these assumptions in the Opinion Leller.

Further, as to other assumptions not included within the purview of Section 4, the Opinion Giver may rely (subject to the other provisions of the Accord) on those which re expressly stated in the Opinion Leller without investigation on the part of the Opinion Giver.

That is not 0 say that the Opinion Giver can blindly rely on any assumption or information provided.

If the Opinion Giver either has Actual Knowledge tha the jnformation or assumptions are false or has Actual Knowledge of facts that would make the reliance unreasonable under the circumstances then Section 5 of the Accord denies to the Opinion Giver the ability to rely on that information or assumr.tion. This is true whether or not Actual Knowledge has been obtained with 0 without an investigatiOl)l' "Actual Knowledge" is defined in Section 6A as meaning the "conscious awareness of facts or information by either the Primary Lawyer or the Primary Lawyer's Croup" at the time the opinion is given. Thus, wnat has been forgotten is not something about which the laWyer is then "consciously aware."

"Primary Lawyer" means the lawyer signing the Opinion Letter, the

lawyer who was actually involved in negotiating the transaction including preparing the documents or preparing the Opinion Letter. It also includes as to mailers related to a particular issue or fact, a lawyer who is responsible for providing that response. "Primary Lawyer Group" is defined as all the Primary Lawyers where there is more than one Primary La er.

Some Conceptual Departures: Th concelft of Actu I Knowled/:le and Pri ary wyer s departure rom th roulin ra ticaof holding tHe I firm responsible fo all information actually or constructively known by all of the lawyers of that firm. Tt provides a positive assurance to the Opinion Recipient as to the particular matters covered while excusing the Opinion Giver's organization from expensive and frequently useless searches that of dubious benefit to the Opinion Recipient. The concepts of Actual Knowledge, Primary Lawyer and

Securities Commissioner, and chaired nte

pollel all third-party legal opilluJIIs at the 1992

on the Opinion Letter and does not have to do anything to try to verify what is contained in the Opinion Letter. Wha t the Accord does not d irec tl y cover, however, is the situation where the Opinion Recipient knows that something in the Opinion Letler is untrue. However, in that situation, the Opinion Recipient could not actually rely on a known untruth.

The Accord deals with how the Opinion GLver1lJ1d other counsel who

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Section 7 provides that the Opinion Recipient is entitled to rely

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'!J1is is the first of two TIle Arkansas Lawyer articles on third-party legal opinions in the wake of the "Silverado Conference. "

Primary Lawyer Group also come

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42

also give opinions relate to each other in Section 8. And Section 9 provides, as common opinion practice does, that the Opinion Letter only "speaks" as of its date and that there is no duty to update the Opinion Letter.

However, unlike common practice, under the Accord, there is no requirement to specifically make statements as to when the opinion speaks or disclaimers as to the lack of duty to update; the opinion simply will speak as to the date on top of the Qpinion Letter._

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EXECUTIVE

DIRECTOR'S

REPORT

By William A. Martin

It's time for a dues increase, Why an increase? Mainly 1979 was the last time your because the cost of everything has Association increased dues. Then been rising. Non dues user fee the Consumer Price Index-Urban type income sources such as (CPI-U) stood at 72.6 (1982-84 = charges for publications and for 100). In August 1992 it had risen meetings can no longer fully fill to 140.9, an increase of 94 per the gap between the costs of cent-dose to double. Obviously operating your Association and some-time we were going to be the income from dues. We have a unable to keep up with inflation strong tradition of balanced without an adjustment. That time budgets and being in the black each year. For this year we are is now.

The good news is your going to have to rely on a large portion of the membership Membership Committee does not subscribing to our legislative expect to recommend an increase reports, Summary from the Hill, of anything like the 94 per cent at $25 each if we are to break even. increase in the cost of living.

How do we compare with Early ideas are to recommend a other states? Our lawyers do not moderate adjustment for next move into the top dues categoryyear of $5 to $15, varying with presently $100 per year-until dues categories, and a four year they have ten years practice. Our phase in of small adjustments of dues for four to ten years are $60. $5 or $10 a year after that, slowly Four border states, Louisiana, getting to 50 per cent more than Mississippi, Missouri and 1979 dues. Your committee is Oklahoma, charge their maximum seeking ideas with the after only three years practice. expectation of making a final Lawyers in Texas reach the recommendation to the Executive maximum at five years and Council in December and the Tennessee at eight. To compare House of Delegates in January. dollar costs we should consider You can share your thoughts by our Supreme Court license fee of writing to: Membership $50 plus our dues of $25 (for less Committee, Arkansas Bar that four years practice) or $60 or Association, 400 West Markham, $100. For the maximum years of practice category in 1991 Texas Little Rock, AR 72201.

.__

was tops with $235, Tennessee totaled $225, Oklahoma $175, Missouri $163, Mississippi $160 and Louisiana $150.

What are we going to do with the money? The general answer is that we are going to keep operating the Association without running a deficit.

Salaries are the biggest single budget item and probably are on the low side for corn-parable work. Payroll increases have mostly been limited to cost of living adjustments with occasional individual merit adjustments. Printing and postage costs keep going up and up. For far too long we have not adjusted the amount we pay the law schools for the UALR Law Journals and Arkansas Law Reviews that go to each member.

We are well below the marginal cost to the law schools of producing copies for you which amounts the schools' subsidizing the bar. We ought to pay our own way. We need adequate money to serve you with an effective legislative lobbying effort, support of committee work, space to do the bar's work and for everything else for which the prices continue to increase.

West Publishing Unveils WIN! "Westlaw Is Natural" hailed as "History Making Breakthrough in Computer Aided Research" On September 16 West Publishing Company unveiled in New York WIN, the next generation of online search technology. "Westlaw Is Natural" provides researchers with a revolutionary new way to retrieve relevant documents.

Dwight Opperman, President and CEO of West Publishing Company, explained the concept saying "This search strategy frees researchers from learning computer language, and allows them to enter their search request in plain English. The power of the computer translates the search and retrieves relevant documents.

There is nothing like this in any other online system."

From conception to premier, West programmers worked for approximately 5 years to develop the language. Opperman said it cost several million dollars to develop, but

would not elaborate.

WIN now has a thesaurus and a synonym finder and features "Retrieval Technology" beyond what has been available to date. Those familiar with Westlaw or Lexis are currently using Boolean Searches to retrieve data, a major reason for the lack of interest in computer research among un-eomputerized law offices.

With the new WIN system, any layperson could search for legal data by simply typing in the question they want answered. Opperman says WIN will return more precise documents which are identified and ranked by the number of times the "concept" is listed in the document.

This should decrease time spent online and improve results.

Opperman said the company expects a "significant" increase in users and is considering of selling the data to Dialogue and others.

At its introduction, WIN will be available in all Westlaw case law databases. It may be usable in statute databases in the coming months, with expansion to additional material to follow.

WIN will be available to the country's 500 largest law firms on October 1, 1992. After that, a phasein to all other law firms will begin with an expected finish date around the first of the year. Law Schools will have WIN in early 1993.

Getting WIN involves a software change on Westlaw's end. The user will make no changes and the system will not cost anything beyond what Westlaw users are currently paying.

For more information on getting online with WIN, call Arkansas's West Representative Dan Rankin at (501) 851-7842, or call Westlaw at 18DO-WESTLAW (937-8529).

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EXTENSIVE COURTROOM EXPERIENCE.

John E, McAllister, 9 Sierra Lane, Hot Springs Village, AR 71909路3214 Phone: (501) 922路1709 Fax: (501) 922-4177 44

ARKANSAS LAWYER

OCTOBER 1992

OULD FIELDS NEW CORNE

By Erwin N. Griswold Reviewed by Victor A. Aeming This book, which is subtitled "The Personal Memoirs of a Twentieth Century Lawyer," contains an appropri<1te disclaimer and warning from the author in the Preface: "Even as a memoir the book is

perhaps boldly unusual. Since it is about a lawyer and his work, it is written in ..."legalese." with, among other things, footnotes and citations. Those who find this burdensome may read the text <md ignore the footnotes. Others may find interesting useful details in these notes.

And they will serve as evidence that I have, to the extent feasible, sought to substantiate my account of the events with which I have occupied. my time over a period of eighty years, covering every decade of this century."

Griswold was Dean of the Harvard Law School from 1946-67. He was Solicitor General under LSI. Since 1973 he has been a partner with Jones, Day in Washington. He has led a fascinating life, and he shares every detail of it in his book: from how he was allowed to be graduated as high school valedictorian without reading Thackeray's Vanity Fair as required in senior English, to the "many little ways in which costs are disregarded"' at Jones, Day. With all due respect to Dean Griswold, Quid Fields, New Come rends like what it is: a retrospective by an elderly gentleman who thinks he is bold and unusual. No one is given credit, by author's acknowledgement or otherwise, for haVing reviewed or edited this cumbersome tome. And the lack of editorship shows. The book could be cut from its 406-page text to 250-300 without loss of significant detail. To shorten the work might liven it up, but this is

unlikely.

For example, early in Chapter XII, Griswold makes the point that, following retirement as Solicitor General in 1973, a friend at Jones, Day persuaded him to join that firm. What I just wrote in one sentence Griswold squeezes into a full page, with two footnotes, including this representative "double sentence" exchange (a syndrome that permeates the entire book-note the "Those who find ..." nnd "Others ... " tandem in the earlier quote): "I was asked if I would be willing to join the firm as a partner when my service as Solicitor General was completed. My response was that I was much pleased to be asked, and definitely interested."

Reading Dean Griswold's book ten pages at a time took forever. But it was a sure cure for insomnia on several nights.

CORPUS JURIS HUMOROUS

By John B. McClay & Wendy L. Matthews Reviewed by Trisha Henry If you like reading caSe law, you'lI love reading CORPUS JURIS HUMOROUS. It is a compilation of approximately 388 reported judicial opinions and related materials dating from 1256 A.D. to the present, evidencing the humorous, outrageous, Wlusual, and sometimes infamous conduct of plaintiffs, defendants and judges alike.

In ten chapters, the following subjects are covered. to name a few: Canine, equine, feline, bovine - and other animal problems; Lawyers, judges, loopholes, technicalities and nuances; Alcohol, drugs, profanity, lewdness, and other assorted. prevalent evils; Passion, romance, fornication, intrigue, indifference, disenchantment

and disgrace; Clever schemes, bizarre claims, novel demands, strange lawsuits and good oldfashioned fraud and deceit; Scoundrels, crooks, outlaws, renegades, rogues and knaves; and Accidents, slips, falls, crashes, crunches, bumps, thumps, and lumps.

Although CORPUS JURIS HUMOROUS provides the reader with numerous clever opinions, reading almost 700 pages of archaic case law arouses, in this reader at least, a remembrance of law school texts that definitely detract from the book's entertainment value. Those readers who overcome that aversion, however, will find many unusual and witty opinions.

A follow up to the book is in the process of being compiled and edited, and an invitation for reader contributions is included. There is no mention, however, whether any "canned" brief publishers are paraphrasing, condensing, marketing, and selling their encapsulated version of CORPUS JURIS HUMOROUS.

101 WAYS TO AVOID A DRUNK DRIVING CONVICTION Reviewed by G. Ray Howard The first sentence of the preface to this book is the most informative sentence.

Said sentence accurately informs the reader that the book was "written for nonlawyers," but for some reason it has been marketed to lawyers. The book provides the reader with some common sense tips for preventing an arrest for OWl. With respect to technical information, one chapter presented informative data regarding the accuracy of breath analysis machines. However, the book is not a source for procedural or substantive legal information.

ARKANSAS BAR ASSOCIATION CLE CALENDAR Bridging-the-Gap CLE: 12+ Hours Date: October 14-16 Place: Holiday Inn Otter Creek, LR Fee: $125.00 or $330.00 Sexual Harassment CLE: 6.00 Hours Date: October 23 Place: Best Western InnTowne, LR Fee: $55.00 CNA Loss Control Seminar CLE: 4.00 Hours Date: October 27 Place: Sheraton Inn, Fort Smith Fee: $30.00 Sixth District Trial Practice CLE: 6.00 Houn.

Date: October 30 Place: Best Western InnTowne, LR Fee: $50.00 Lobbying CLE: 6.00 Hours Date: November 20 Place: Best Western InnTowne, LR Fee: $11 0.00

Environmental Law for Real Estate Lawyers CLE: 6.25 Hours Date: November 13 Place: Best Western InnTowne, LR Fee: $110.00 Federal Tax Institute CLE: 1350 Hours Date: December 3-4 Place: Excelsior Hotel, LR Fee: $185.00 First District Trial Practice Seminar CLE: 6.00 Hours Date: December 11 Place: Holiday Inn, jonesboro Fee: $75.00

Basic Bankruptcy Law CLE: 3.25 Hours Fee: $65.00 OCTOBER 22 EI Dorado OCTOBER 26 Fort Smith NOVEMBER 5 Fayetteville, Russellville

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ARKANSAS BAR ASSOCIATION 1993 ANNUAL MEETING june 9-12,1993 The Arlington Hotel, Hot Springs Video Replay Network Call the Arkansas Bar Association CLE Department at 375-3957.

• Becaus~ of early publish dat~, seminar dates, locations, and fees are subject to change. For more information or to request a brochure on seminars, call 3753957; or fax 375-4901, or Write to: eLE DEPARTMENT, ARKANSAS BAR ASSOCIATION, 400 W. Markham, Suite ]00, Liffle Rock, Arkansas. 72201-1426

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