The Arkansas Lawyer Fall 2014 by Arkansas Bar Association

The Arkansas

Lawyer A publication of the Arkansas Bar Association

Inside: Immigration Law The Face of the Arkansas Courts

Vol. 49, No. 4, Fall 2014 online at www.arkbar.com

PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 375-4901 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins EDITORIAL BOARD Jim L. Julian, Chair Keith L. Chrestman Karen Sharp Halbert Judge Brandon J. Harrison Ashley Welch Hudson Anton Leo Janik, Jr. Philip E. Kaplan Tory Hodges Lewis Drake Mann Gordon S. Rather, Jr. David H. Williams OFFICERS President Brian H. Ratcliff Board of Governors Chair Anthony A. Hilliard President-Elect Eddie H. Walker, Jr. Immediate Past President Jim Simpson Secretary F. Thomas Curry Treasurer Shaneen K. Sloan Parliamentarian Leon Jones, Jr. Young Lawyers Section Chair Jessica S. Yarbrough BOARD OF GOVERNORS Thomas M. Carpenter Suzanne G. Clark Don R. Elliot, Jr. Frances S. Fendler Amy Freedman Buck C. Gibson Amy L. Grimes Denise Reid Hoggard Don Hollingsworth Leslie J. Ligon Jeffrey Ellis McKinley Wade T. Naramore Laura E. Partlow Jerry D. Patterson Kristen L. Pawlik Brant Perkins John C. Riedel Gwendolyn Rucker Jerry L. “Jay” Shue, Jr. Brian A. Vandiver Danyelle J. Walker LIAISON MEMBERS Brian M. Clary Jack A. McNulty Judge Van A. Gearhart Rosalind M. Mouser Karen K. Hutchins Richard L. Ramsay Judge Mary S. McGowan Charles D. Roscopf

The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to non-members of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2014, Arkansas Bar Association. All rights reserved.

The Arkansas

Lawyer Vol. 49, No. 4

features

10 Understanding the Removal Process By Lindsay Williams Zimliki 16 Critical Issues Employers Need to Consider When Sponsoring Foreign National Workers for H-1B Temporary Work Status/Visa By George Ernst 20 Immigration Issues for Every Employer By Misty Wilson Borkowski 24 The Face of the Arkansas Courts and the Communities They Serve By J.D. Gingerich 30 Practicing Before the Arkansas State Claims Commission By David H. Williams 34 Report from the 2014 National Conference of Commissioners on Uniform State Laws By Lynn Foster 36 Justice Christopher Columbus Scott By J.W. Looney 38 At the Barricade (on Markham): The Brooks-Baxter War By Cliff and Karen McKinney

Contents Continued on Page 2

Lawyer The Arkansas

in this issue ArkBar News

Vol. 49, No. 4

ArkBar Governance Report

Disciplinary Actions

Arkansas Bar Foundation Memorials and Honorarium

In Memoriam

Classified Advertising

Watch for the 2015 CLE Desk Catalog in the mail soon. Over 19 in-person seminars and 100 one-hour webinars January-August. See full schedule at www.arkbar.com. January-August 2015

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HOUSE OF DELEGATES Delegate District A-1: Jon B. Comstock, Andrew T. Curry, Angelia Esparza Muldoon, Kristin L. Pawlik, Vicki S. Vasser Delegate District A-2: Suzanne G. Clark, William Fitzgerald Clark, Casey D. Copeland, Bob Estes, M. Scott Hall, Jason M. Hatfield, Matthew L. Fryar, Leon Jones, Jr., Joshua D. McFadden, Sarah A. Sparkman Delegate District A-3: Aubrey L. Barr, Veronica Lawson Bryant, Colby T. Roe, Samuel M. Terry, Candice A. Settle Delegate District A-4: Open Delegate District A-5: Wade A. Williams Delegate District A-6: Jonathan E. Kelley Delegate District A-7: Samuel J. Pasthing Delegate District B: John T. Adams, Amber Wilson Bagley, Eric Scott Bell, Bart W. Calhoun, Frankianne E. Coulter, Grant M. Cox, Jason W. Earley, Edie Ervin, Caleb Peter Garcia, Kenya J. Gordon, Shana Woodard Graves, Stephanie M. Harris, James E. Hathaway III, Christopher Heil, Matthew R. House, Amy Dunn Johnson, Jamie Huffman Jones, Dominique King, William C. Mann III, Patrick W. McAlpine, J. Cliff McKinney, Chad W. Pekron, Shaneen K. Sloan, Jonathan Q. Warren, J. Adam Wells, David H. Williams, Thomas G. Williams, George R. Wise, Jr., Shana R. Woodard, Kim Dickerson Young Delegate District C-1: Roger U. Colbert Delegate District C-2: Michelle C. Huff Delegate District C-3: Keith L. Chrestman, Robert J. Gibson, Jason Milne Delegate District C-4: Jobi J. Teague Delegate District C-5: Matthew Coe, Albert J. Thomas III Delegate District C-6: Michael L. Murphy, Andrea G. Woods Delegate District C-7: Jimmy D. Taylor Delegate District C-8: Brent J. Eubanks, John P. Talbot, Jessica S. Yarbrough Delegate District C-9: Chase Adam Carmichael, Jenny Denise Chambers-Lemoine, Leslie J. Ligon Delegate District C-10: Clark D. Arnold, George M. Matteson Delegate District C-11: Sterling Tanner Chancey, J. Philip McCorkle Delegate District C-12: Kurt J. Meredith, Michelle M. Strause Delegate District C-13: John Andrew Ellis, Brian M. Clary Law Student Representatives: Tiffany Nicole Godwin, University of Arkansas School of Law; Nicholas Williams, UALR William H. Bowen School of Law

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The Program is available through the Arkansas Bar Association as a member benefit. This communication shall not constitute an offer to sell or the solicitation of an offer to buy, or a request of the recipient to indicate an interest in, and is not a recommendation of any security. Securities offered through Voya Financial Partners, LLC (Member SIPC). The ABA Retirement Funds Program and Voya Financial Partners, LLC, are separate, unaffiliated companies and are not responsible for one another’s products and services. CN0228-8312-0315

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

ARKBAR NEWS Bobbitt to Retire from the Arkansas Bar Foundation On December 31st of this year, Joyce Bobbitt, Bookkeeper and Administrative Assistant for the Arkansas Bar Foundation, will retire after providing service for over 30 years to the legal profession. Employed in May of 1984, she holds a great deal of historical knowledge of the organization’s mission and past. “I have rarely met a person of greater integrity, character, and honesty than Joyce,” said Ann Dixon Pyle, Executive Director of the Arkansas Bar Foundation. “It has been my pleasure to work alongside her these past 19 years, and she Joyce Bobbitt will be greatly missed by me as well as the Fellows of the Arkansas Bar Foundation for her tireless efforts and invaluable work of three decades.” When asked what she intends to do with her “free time,” Joyce said, “I haven’t really made any definite plans. Now that my circle of friends and I have reached our retirement, we are planning on spending more time together on a regular basis which will include day and weekend trips. I look forward to visiting my family in Maine. I also may go back to bowling....who knows?” Joyce, whatever your plans may be in the next chapter of life, we wish you well!

Arkansas Bar Foundation Mid Year Scholarship Dinner Friday, January 30, 2015 Next Level Events at the Historic Union Station in Little Rock

September 11 Wills For Heros and Blood Drive ArkBar Lawyer Care Event

Arkansas Bar Association Welcomes New Staff Member The Arkansas Bar Association welcomes Nicki Baker as the new Receptionist/Administrative Assistant. Mrs. Baker replaces TraNita Scott Kelley who is now the Nicki Baker Data Administrator for the Association. Mrs. Baker recently relocated to the Little Rock area from Kuwait where she was a music teacher for the British School of Kuwait. Prior to relocating overseas with her family in 2006, Mrs. Baker worked in accounts payable with the Hospital Corporation of America in Largo, Florida. Mrs. Baker lives in Greenbrier, Arkansas, with her husband and 12-year-old son. She enjoys hiking, running and exploring the beauty found in the “natural’ state in her free time. Karen K. Hutchins, Association Executive Director, said, “Nicki is a great addition to our team. From her front-desk position, she greets everyone who visits and calls the Arkansas Bar Center with a friendly reception.”

New Patron & Benefactor Member Recognition

Thank you to the more than 60 attorneys, paralegals, notaries and law students who volunteered to make the ArkBar Lawyers Care Event September 11, 2014, a success. The Association offered a free legal clinic to first responders and the Red Cross Blood mobile was on site for a blood drive. The volunteers drafted more than 114 legal documents and served 43 clients. Twenty volunteers donated blood, which equates to 60 lives being saved with their donations. Special thanks to Kathleen McDonald with the Beacon Legal Group in Little Rock for leading the Legal Clinic event.

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The Association is mailing all Patron and Benefactor members a memPATRON bership decal to proudly LEVEL Sustaining Contributor display in their offices. 2014-2015 Money from Patron and Benefactor contributions helps fund important Association projects. MemBENEFACTOR bers can now be recogLEVEL Sustaining Contributor nized for the extra efforts 2014-2015 with the official seal displayed in their offices. Watch for surprise office visits where we will be handing out prizes to those members who are displaying the decal at their office. For more information on becoming a Patron or Benefactor contributing member visit www.arkbar.com.

ARKBAR NEWS

Oyez! Oyez! ACCOLADES The Ashdown High School Alumni Association honored Judge John C. Finley III with a 2014 Alumni Award. Ouachita Baptist University honored Richard Lusby with a 2014 Alumni Milestone Award. Melody Piazza, partner with Trammell Piazza Law Firm PLLC and Michael N. Shannon, managing member at Quattlebaum, Grooms & Tull PLLC were recently inducted into the American Board of Trial Advocates. The Association of the Bar for the U.S. Court of Appeals for the Eighth Circuit awarded John R. Elrod of Connor & Winters the Richard S. Arnold Award for Distinguished Service. UALR Bowen School of Law awarded Lynn Foster with the Faculty Excellence Award and Danyelle Walker the 2014 Distinguished Alumna for Public Service award. The International Association of Business Communicators awarded Judge Chris Piazza the 2014 Communicator of the Year Award.

APPOINTMENTS AND ELECTIONS Judicial Discipline & Disability Commission Executive Director David J. Sachar was recently elected as vice-president of the Association of Judicial Disciplinary Counsel. Sachar was also recently appointed to the advisory board of the American Judicature Society’s Center for Judicial Ethics. Byron Cole Rhodes has been appointed to the Hot Springs Urban Forestry Advisory Committee. Amber Wilson Bagley was recently elected president of Youth Home Inc. Devon Daughtery, Bowen 3L, is one of only three law students in the nation to receive the Diversity Scholarship from the Memphis-based law firm Baker Donelson. Sarah Howard Jenkins, the Charles Baum Distinguished Professor at the UALR Bowen School of Law, has been elected to the executive committee of the American Society of Comparative Law. Rosalind M. Mouser currently serves as Secretary of the Greater Arkansas American Red Cross Board and serves on the Volunteer Strategic Team of the Southwest and Rocky Mountain Division of the American Red Cross.

WORD ABOUT TOWN Quattlebaum, Grooms & Tull PLLC announced that Justice J. Brooks I, Daniel D. Ford and Mary-Tipton Thalheimer have joined the firm as associates. Sheldon Smith has joined the Brad Hendricks Law Firm as an associate. Watts, Donovan & Tilley, P.A. announced that Michael McCarty Harrison and Staci Dumas Carson have been named partners in the firm. Trae Gray was the featured ethics speaker at the National Business Institute’s Frac Law Seminar in Oklahoma City, Oklahoma. Simmons First National Corporation recently named Patrick A. Burrow as Executive Vice President and General Counsel. The law firm of Ledbetter, Cogbill, Arnold & Harrison, LLP announced that R. Scott Zuerker joined the firm as a partner and Joseph K. Luebke joined the firm as an associate. The law firm formerly known as Robertson, Beasley & Ford, PLLC announced that Benjamin H. Shipley III, Michael K. Redd, Alfred F. Angulo, Jr., Robert D. Kelly and Travis Loftis, Sr. have joined the firm. Mr. Loftis and attorneys Mark E. Ford and Thomas E. Robertson, Jr. will assume “of counsel” status. To reflect the current roster list of its members, the firm name has been changed to Robertson, Beasley, Shipley & Redd, PLLC. Wright, Lindsey & Jennings LLP announced that the Honorable James M. Moody Sr., former federal judge for the U.S. District Court for the Eastern District of Arkansas, returned to the firm as Of Counsel. Dina Wood has been named senior director of development for the UAMS Northwest Arkansas Region. The law firm of Bridges, Young, Matthews & Drake PLC announced that Alexandra C. Kosmitis has joined the firm as an associate. We encourage you to submit information for publication in Oyez! Oyez! Please send to ahubbard@arkbar.com.

2014-2015 Leadership Academy Twelve attorneys from across the state have been selected to participate in the Arkansas Bar Associaton’s 2014-2015 Leadership Academy. For the sixth year in a row, the academy will provide its participants with a program designed to create a diverse network of lawyers with the knowledge, skills, and values to provide a dynamic leadership to the profession, their communities and the state. The academy starts off with an opening retreat December 4-5, 2014, at the Arkansas Bar Center. For more information on the academy visit http://www.arkbar.com/ pages/leadershipacademy. 2014-2015 Participants: Guy Benjamin Barham 6th Judicial District, 16th Division Circuit Court Marcus N. Bozeman Thrash Law Firm, P.A. Ryan J. Caststeel Hopkins Law Firm, P.A. Caleb Peter Garcia City of Little Rock Kandi Hughes University of Central Arkansas Amy M. Pritchard UALR William H. Bowen School of Law Kendra Khrystal Pruitt Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. Dusti Standridge Attorney at Law Sarah R. Tacker Arkansas Attorney General’s Office Joshua Reed Thane Haltom & Doan Brice R. White The Law Offices of Brice R. White, PLLC Media Wilkins Wilkins Firm Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

ARKBAR NEWS Two Members Announce Their Candidacy for Association President Denise Reid Hoggard and Harry A. Light have announced their candidacies for President-Elect of the Arkansas Bar Association. The deadline for filing was October 31, 2014. Association members will receive ballots either electronically or by mail no later than November 20, 2014. The candidate receiving the highest number of votes cast in the election becomes the PresidentElect Designee, and succeeds to the office of President-Elect at the conclusion of the 2015 Annual Meeting. Members are encouraged to vote and return their ballots by December 15, 2014. I am a general practice lawyer of 30 years. My work, concentrated in employment law, has depended largely upon referrals. I have worked extensively with lawyers statewide, both with and against. The collegiality and congeniality we enjoy as Arkansas lawyers is a treasure. I will work to continue this Arkansas Bar tradition. I have my law firm’s full support. Our Bar Association President Denise Reid Hoggard needs to be a strong communicator, trusted advisor, and be respectful of the legal process. My teaching experiences and current Board of Governors service have equipped me to fulfill these roles. I humbly ask for your vote.

It has been my privilege to serve the Arkansas Bar Association in a number of different capacities. I feel prepared to lead our Association after serving on the Board of Governors for seven years including one year as chair along with eight years in the House of Delegates and as chair of several committees. Through these experiences, I have learned how fortunate we are to have so many Arkansas lawyers who Harry A. Light give generously of their time and talent in service to the Association. Serving Arkansas lawyers is the mission of the Association. I pledge to work to ensure the Association’s benefits are available and expanded for future generations of lawyers. Thank you for your consideration.

Congratulations to members of the Arkansas Bar Association celebrating their 25th year of practice

Clarke D. Arnold M. Keith Blythe Judge Wiley A. Branton, Jr. William McShane Bridgforth John A. Bryant Stephen W. Butler James V. Coutts Andrew Carter Cozart Caroline M. Craven Eldon E. Cripps Judge Gerald Kent Crow Gregory L. Crow J. David Daniel Derrick M. Davidson Clay H. Davis George Michael DeLoache Rebecca Jane Denison Judge Mark M. Derrick Jefferson K. Faught F. Michael Faust Milton Fine II

Lynn Manning Flynn Melinda N. French Judge C. S. “Chuck” Gibson Paul A. Gilker Scot P. Goldsholl John C. Goodson Melanie L. Grayson Joseph W. Gregory Gena H. Gregory Ann Bilheimer Grimes Whitney Williams Grogan Judge John A. Harkey Tammera R. Harrelson James L. Harris Patricia J. Hays Craig L. Henry Patricia D. Horn E. Burke Huber, Jr. Gina K. Hudson Elizabeth Huggins Sarah L. James Christopher M. Jester John F. Johnson Darnisa E. Johnson Judith M. Johnson Shirley E. Jones

6 The Arkansas Lawyer www.arkbar.com

Kevin W. Kennedy Max Koonce Karl W. Kuhn Lori Kumpuris Brent M. Langdon Michael A. LeBoeuf Martin Emmett Lilly Lynn D. Lisk Mike Maggio Judge D. Price Marshall, Jr. Richard Bryant Marshall Lisa E. Marvin Sheila Freeman McDonald David J. McDonough James N. Miller Aaron L. Mitchell H. Clarke Mixon III Mark Jefferson Mobley Jeffrey H. Moore Cynthia E. Nance George H. Niblock Ronald C. Nichols William Lance Owens Mark Alan Peoples James Michael “Mike” Pickens Donald J. Plowman

Kendall Booth Rand Samuel Marvin Reeves Michael L. Roberts Douglas S. Robertson Jerry D. Rochelle John T. Root, Jr. Pamela Rumpz Kathryn Sampson Judge Ronald L. Sheffield Stan D. Smith Michael James Spivey Sam P. Strange, Jr. John F. Stroud III Floyd J. Taylor, Jr. John Carl Threet Corey B. Trotz Judge Tim M. Weaver Richard Whiffen Clinton Michael White Jay B. Williams Wade A. Williams David D. Wilson Brian D. Wood Rita E. Wooley Daniel E. Wren James C. Wyly

PRESIDENT’S REPORT

A THREE COURSE MEAL— THE ENTRÉE

BY BRIAN H. RATCLIFF My favorite part of dining out is choosing an entrée. I enjoy researching the options beforehand and hearing the specials when I arrive. My favorite entrée is a ribeye steak cooked medium rare. Some excellent places to enjoy this are: David Burke’s Primehouse in Chicago, Grill 23 in Boston and McKendrick’s Steak House in Atlanta. I also love cooking steaks. When preparing a good steak I like to use a dry rub a day in advance. Next, I make sure the steak comes out of the refrigerator at least one hour before cooking to let it come to room temperature. Finally, I cook it over high heat. The trick is to get a good sear. The high heat sears in the flavors. Most purists prefer nothing on their steak and let the meat speak for itself. My wife Karen enjoys some sort of sauce on her steak. Over the years I have created a few go-to sauces such as red pepper sherry vinaigrette, Roquefort sauce, Cabernet fig sauce, Bar American steak sauce, and traditional hollandaise sauce. As president of the Arkansas Bar Association, the main entrée on the menu this year is our legislative package. The 2015 Bar package, as approved by the House of Delegates, includes the following: • • • • • •

Online Access to the Arkansas statutes; Attorney Exemption from the Arkansas Insurance Title Agent Act; Clarification and Reorganization of Venue Statutes; Limited Liability for Minors; Criminalization of the Unlawful Distribution of Images; and Uniform Partition of Heirs Property Act.

The Association believes that the public should have full use of the Arkansas statutes

without agreeing to a terms of use. The Association is proposing legislation that would make available to the public an electronic copy of the statutes with no restrictions on use. The Limited Liability for Minors Act exempts a minor from being prosecuted if they request emergency medical aid for another. The Criminalization of the Unlawful Distribution of Images creates a crime for those persons sending “revenge porn” to third parties. The Uniform Partition of Heirs Property Act allows an heir to purchase the interest of another heir in real property via an appraisal in a partition action. We have a very active Legislative Committee that reviews every bill that is filed in the Legislature. The Legislation Committee works with our lobbyist, Jack McNulty, who makes every effort to ensure that the Bar Association package becomes law. The committee is charged with determining if each proposed law affects the administration of justice or the practice of law. If it affects either, then the committee decides if the Bar Association should support, oppose, or take no position. Jack McNulty lobbies for the position of the Association as espoused by the committee. My former law partner of 17 years, Teresa Wineland, chairs this year’s committee and is devoted to protecting and furthering the interests of the Association. We will honor all Arkansas attorneys at a reception at the William J. Clinton Presidential Center on Wednesday evening, February 18, 2015, as part of the Association’s Mid-Year meeting. All attorneys and judges are invited and encouraged to attend this special reception at no cost, including nonAssociation members. The meeting is being held in Little Rock for the first time in over 20 years.

Now, to consider the special entrée. Far too often I look at the menu and make my tentative pick of an entrée and then hear the special. I have no basis for this, but it is my belief the chef has found some wonderful ingredient and wants to showcase it in the special for this night only. I am generally not disappointed. The special on the menu this year is our Task Force on Liability Insurance. For those of you who remember my last article, this was listed as an appetizer. In some cases you will find that an appetizer also appears as an entrée as it does here. Chair Larry Burks and his task force have studied the malpractice insurance current industry offerings and interviewed five companies to ensure our members receive a high quality malpractice insurance offered at an affordable price. The task force will soon submit a request for proposal to each company. After reviewing the requests for proposal the task force will then make a recommendation to the Board of Governors. The task force will recommend a provider that will offer the best professional liability insurance coverage for our members. This is not an easy task as the market has become very competitive as evidenced by the presentations made to the committee to date. Selecting an entrée is always a decision I carefully weigh with what else is on my plate. The decision will be made with due diligence by the task force as well as the Board of Governors and House of Delegates. I regret I served you with just two entrées for consideration, but space does not allow for a full menu. Bon Appétite. 

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

ARKBAR NEWS Congratulations to the new members admitted to the practice of law October 2014

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John W. Ahlen Aislinn Ryan Andrews Mark Terry Andrus Lindsey Anne Bailey Caleb Ben Baumgardner Savanna Gail Baxter Michael Thomas Beasley John David Bechtold Steven Lenehan Bell Melanie Ann Beltran Brandi Wiltse Berta Pamela Warnock Blair Chevera Annette Blakemore Jacob David Bleed Mason Lee Boling Curtis Box II Bradford David Box Micah Brandon Justice Jete Brooks Kristen Michelle Brown Melissa Ann Brown Rebecca Ann Bryson Linda M. Burgess Benjamin Richard Burnett Meagan Nicole Burns Scott Adam Burton Katelyn Burch Busby Darlene Carpenter Cortney Gail Cato Brandon Tyler Cole Kelly Leigh Comer Stacy Leigh Coonce Leslie Caroline Copeland Callie E. Corbyn Roberto Miguel Cossio Nikki Lee Cox Damaris Sonora Cox Justin Evan Craig Sarah Rigg Cunningham Lee Douglas Curry Mark Thomas Daven Danya Elise Davenport Kate Davidson Gary Cooper DeWitt Jacob Kenneth DeYoung Monica Christine Didion Brigham Alexander Dixson Anna Elise Dudley Taylor Alexander Dugan

Kayleigh Collins Dulaney Joshua Drew Edwards Lauren Murphy Eldridge Preston Tull Eldridge Lauren Mary Ann Elenbaas Christopher Ayres Fasel Daniel Robert Feild William P. Feland Daniel DeMotte Ford Thomas J. Fosko J. Ryan Fowler Charles Wesley Fowler Claire Collins Frantz Katie Lee Freeman Matthew Gary Gallagher Susan Victoria Gammill Jerry D. Garner Trent Chancey Garner Tyler Clinton Ginn William Frank Godbold IV Evelyn Diane Gomez Tori B. Gordon Jay Wesley Gorman Riley A. Graber Amos James Gregory Carolyn Therese Harder Ashley Michelle Harris Justin Thomas Heimer Grayson Tyler Hinojosa Elizabeth A. Gooch Hollowell Blake Parker Hoyt Pierce Gray Hunter Jason Anthony Hutcheson Hannah Joy Jeppsen Kevin Nicholas Jones Joseph Samuel Joslin Matthew Kezhaya Linda R. Klama David Frederick Koehler Kevin William Lammers Mallory Elizabeth Langston Kathleen Nicole Lestage Brian Harry Light Jack Porter Lofton Howard Brett Manis Anthony James Marelle Matthew Marvel Mathis Mark Nathan Matney Zach Adam Mayo

Heather Rooney McBride Mary Kathleen McCarroll Drew Michael Milner Ashley Caroline Mitchell Jordan Mooney Valerie Samantha Morato Mary Clay W. Morgan Whitney Brooke Murph Kensing Ng Fred Reuben Norton Patrick Brian Nowlin Melody W. Oliver Kathleen Welch Orejuela Laura Jeanne Pearn Brittany Horn Pettingill Stephanie Camille Reifers Joshua Edward Robinson Laura Cathleen Robinson Alexandra Rodery Rouse Joshua Mitch Rouse Joshua Clark Rovelli Daniel Wayne Sbanotto Russell Schenewerk Brenda Sue Simpson Abram Walt Skarda Steven William Smith Katherine Jordan Smith Jonathan Randle Smolarz Courtney Leigh Starr Meredith Baker Strong Demarcus Dewayne Tave Brett Wesley Taylor Katrina Louise Taylor Daniel Zachary Throneberry Trevor Brent Townsend Jerome P. Unser Braden Ross Vaughn Thomas Vaught Vinson Samuel Thomas Waddell Kevin J. Wallace Margaret Ann Ward Travis W. Watkins Jeffry Dan Weems Blake Williams Wilcox Kylie Nicole Wiley Stevin A. Williams Julia Carey Works Daniel K. Yim Melissa Ann Zimmerman

YLS REPORT

FULLFILLING THE MISSION

BY JESSICA S. YARBROUGH

I am pleased to report that dedicated members of the Young Lawyers Section are fulfilling our mission of service to the community and the profession one step at a time. Arkansas Young Lawyers have received national recognition in being featured in the September edition of The Affiliate, which is an international publication for all organizations affiliated with the American Bar Association. The ABA Young Lawyers Division’s Affiliate Network consists of over 300 young lawyer organizations from around the world. Thanks to all the hard work and dedication of Arkansas YLS members, the world now knows about the difference we are making. The article is available to American Bar Association members via the ABA website: http://www.americanbar.org/publications/ the_affiliate/2014/september-october/affiliate_spotlight_arkansas_bar_association_ young_lawyers_section.html. YLS members were honored to contribute to the success of Wills for Heroes, held on September 11, 2014, at the Bar Center. Not only were contributions made through time and presence, but also through sponsoring the insurance coverage for the event. Hats off to the Citizenship Education committee co-chairs John Rainwater and Melissa Grisham who partnered with Cory Childs and the Harold Flowers Law Society for a voter registration drive at K-Mart on Rodney Parham in Little Rock. Those registered included individuals who had recently relocated to Arkansas and/or Pulaski County, and others who have just reached the age of majority.

Citizenship Education Committee Co-Chair John Rainwater at the voter registration drive.

Pro-Bono Committee Co-Chair Joycelyn Bell at the Expungement Clinic. The Pro Bono Committee had all hands on deck in Jefferson County at an Expungement Clinic, held at the Jefferson County 6th Division Circuit Court on October 4, 2014, in which approximately 60 individuals were served. YLS members continue to have a successful presence at the Swearing-In Ceremony for the new admittees. Each new lawyer was welcomed into the Association and received an electronic version of the New Admittee Survival Guide, which includes helpful in-

formation from Arkansas Bar membership benefits to tracking billable hours. As some members extended a warm welcome to the newcomers, others assisted with the How to Practice Law in Arkansas Seminar, held on October 9-10, 2014. This year’s seminar incorporated more hands-on activities in which attendees were able to actively engage in solving hypothetical situations. Participants were able to attend one of two workshops (Slip & Fall or Handling a Divorce/Custody Case) and put their knowledge into practice to conclude the two-day event. The Legal Procedure for Small Business Owners Workshop held at the University of Central Arkansas was a great success, thanks to YLS members Anthony McMullen, Joey Price, and Madeline Moore. The presenters covered information about the structure of lawsuits in the event that the company is sued, and how business owners are able to circumvent litigation and labor and employment issues. In its debut, the Workshop welcomed 15 business owners and received rave reviews from those in attendance. YLS is on the move and is flowing at a steady pace of fullfiling the mission of community enrichment and professional development. Stay tuned for the Minority Outreach Committee College Road Tours, and the Anti-Bullying Programs that are slated to launch in the spring. 

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

UNDERSTANDING THE REMOVAL PROCESSS

BY LINDSAY WILLIAMS ZIMLIKI1

Immigration is and has been an important issue in the United States for several years. Every time we turn on the television, surf the internet or read the newspaper, we are likely to encounter an immigration-related story. Often the stories that elicit the greatest response—emotionally, legally, and politically—are those that concern the “removal” of individuals who have come to the United States from other countries. It may be illegal workers who have been here for years, working, paying taxes, building families, or the scores of minors currently crossing our border, or those who obtained legal immigration status only to endanger it by committing a crime. These stories incite emotion in us as Americans and as humans. News reports and op-eds often convey these individuals’ stories or debate whether they should be allowed to remain in the United States. But these reports and op-eds often lack a basic explanation of the administrative system by which those who fall into the category of “aliens” are removed from the United States. The Term “Deported” Has Departed Although we still hear the term “deported,” on the news and in our favorite crime dramas, the term really is not as relevant as it once was. The more accurate term is “removal.” Prior to April 1, 1997, there were two types of proceedings through which noncitizens could be denied “the hospitality of the United States,” “exclusion” 10

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and “deportation.”2 Exclusion proceedings applied to noncitizens who were trying to enter the United States, i.e., trying to cross the border. Deportation proceedings applied to those who had successfully entered the United States, whether they did so legally or illegally.3 After April 1, 1997, however, the terms “removal” and “removed” became the more accurate terms to use.

That’s because on April 1, 1997, Congress enacted the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA),4 which replaced the terms “deportation” and “exclusion” with “removal.” The focus of the singular removal proceeding was not whether a noncitizen had “entered” the United States, but whether the noncitizen had been “admitted” to the United States. An admission to the United States is a transformational event in the immigration history of a noncitizen. Entrance Is Not Admission So, what does that mean—to be admitted to the United States? It’s a term of art in the world of immigration and it can be tricky. The easiest case is that of a noncitizen who has entered the United States after inspection by and with the authorization of an immigration officer.5 Such an individual has both entered and been admitted to the United States, i.e., a tourist from Britain who lands at JFK airport and passes through immigration. A noncitizen can, however, physically enter the United States without being admitted. An example of this is when noncitizens find a way to cross the border undetected. These individuals are present in the United States, but have not been “admitted” for immigration purposes. Another example is when an immigration official “paroles” a noncitizen into the United States for a

specific purpose, such as obtaining medical treatment, visiting a sick relative, attending a funeral, or participation in civil litigation or criminal prosecution. When noncitizens are paroled into the United States, they are allowed to be physically present, but have no legal immigration status and are not “admitted” for immigration purposes.6 Yet another example is that of noncitizens who are allowed to land temporarily because they are crew members on a ship.7 They are allowed to be physically present, but no immigration status conveys with that presence. More complicated is the case of a noncitizen who adjusts his status to that of a lawful permanent resident (“LPR”).8 In the past the legal change in immigration status to that of an LPR was, itself, an “admission.”9 Yet, in recent years the Board of Immigration Appeals and the U.S. courts of appeals have slowly begun to change the landscape in this area of immigration law.10 The details of those changes warrant another article for another time. There’s A High Price On “Admission” So why is admission important? What does that mean for a noncitizen? The short answer is that it determines who bears the burden of proof in removal proceedings. Generally, a noncitizen who is charged as being inadmissible has the burden to prove that he or she is “clearly and beyond doubt entitled to be admitted and is not inadmissible.”11 There are 10 classes of “inadmissible aliens” and they include those who 1) present public health concerns; 2) have been convicted of certain crimes; 3) pose a risk to national security; 4) are likely to become public charges; 5) seek to enter the United States for the purpose of performing skilled or unskilled labor, but are not certified; 6) have entered illegally or failed to comply with their immigration requirements; 7) do not possess legal travel documents; 8) are ineligible for citizenship; 9) have previously been removed; and, 10) fall into a “miscellaneous” category of inadmissible aliens, such as practicing polygamists and participants in international child abduction.12 As we know, a noncitizen can be present in the United States without having been admitted. This gives a slight advantage in removal proceedings. A noncitizen who is already present in the United States and who is charged as having entered without being admitted or paroled does not bear the burden

until the government establishes that the noncitizen is not a U.S. citizen or national.13 But once that is done, the burden is on the noncitizen to demonstrate by clear and convincing evidence that he or she is either “lawfully in the United States pursuant to a prior admission,” or “clearly and beyond a doubt entitled to be admitted to the United States and is not inadmissible as charged.”14 Conversely, a noncitizen who has been admitted and who is charged on a ground of deportability does not bear the burden of proof. The government must show by “clear and convincing evidence” that the noncitizen is deportable.15 There are six classes of “deportable aliens” and they include those who 1) were either inadmissible at time of entry or of adjustment of status or those who violated the terms of their admission, including those who have engaged or assisted in alien smuggling or who committed marriage fraud; 2) have committed specific criminal acts or been convicted of specific criminal charges; 3) have failed to register a change of address, been convicted for failing to register as required under federal law, falsified documents, or made a false claim to citizenship; 4) pose a threat to national security; 5) within five years after the date of entry, have become public charges from causes not affirmatively shown to have arisen since entry; and, 6) have voted in violation of any federal, state, or local constitutional provision, statute, ordinance, or regulation.16 The important takeaway from this is that Congress has made it more difficult to remove a noncitizen admitted to the United States than a noncitizen seeking admission to this country.17 Thus, when faced with the possibility of removal it is very important to determine whether an individual has been admitted to the United States. Relief From Removal Even when a noncitizen has been charged as removable, there are ways in which he or

she may remain in the United States. These are known as the various forms of relief from removal. The most common and basic forms of relief include: asylum, cancellation of removal, adjustment of status, and voluntary departure. When a noncitizen is afraid to return to his or her home country due to past persecution or torture or a fear of future persecution or torture, he or she can file an application for asylum, withholding of removal and protection under the Convention Against Torture (“CAT”).18 If a noncitizen has been living in the United States for a long period of time, is law abiding, and has immediate family members who are either LPRs or U.S. citizens and who depend upon the noncitizen, then he or she may file an application for cancellation of removal.19 If a noncitizen was admitted to the United States, has not since done anything that would render them “inadmissible,” and has a visa immediately available to them, then they can file for adjustment of status, which would make them an LPR.20 If a noncitizen is deemed removable and is not eligible for any other relief from removal, he or she may opt for voluntary departure.21 Voluntary departure is considered a “privilege” in immigration law, and basically means that the noncitizen agrees to leave the United States by a certain date at his or her expense in order to avoid the negative consequences of being removed. The noncitizen bears the burden of proving he or she is eligible for the requested relief.22 The Removal Proceeding: Will Your Client Stay Or Go? A noncitizen’s official notice of removal charges is the service of a Notice to Appear (“NTA”). Each NTA must explain the nature of the proceedings against the noncitizen, the legal authority under which the proceedings are conducted, the acts or conduct alleged to be in violation of law, the charges against the noncitizen, and the

LINDSAY WILLIAMS ZIMLIKI has been an attorney with the United States Department of Justice, Office of Immigration Litigation since January 2007.

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

“A basic understanding of the immigration removal system may bring a bit of context to the stories and debates we encounter every day.”

statutory provisions alleged to have been violated.23 Additionally, the NTA informs the noncitizen of his or her right to counsel, the obligation to notify the attorney general of a current address, and the time and place at which the removal proceedings will be held.24 Service of the NTA shall be in person if practicable, though it may be mailed to the noncitizen or counsel of record.25 DHS will initiate removal proceedings by filing the NTA with the Immigration Court.26 This filing triggers the jurisdiction of the Immigration Court over a noncitizen’s removal.27 Immigration judges adjudicate removal decisions, requests for relief from removal, adjustment of status applications, and requests for voluntary departure.28 The immigration judge will hold a master calendar hearing and then a merits hearing. During a master calendar hearing the noncitizen must be notified of his or her right to representation. Qualified representatives include attorneys (at no cost to the government), law students or graduates under supervision, Board of Immigration Appeals accredited representatives, an official of the government to which the noncitizen owes allegiance, or a reputable individual appearing without compensation.29 The immigration judge will conduct a master calendar hearing during which he or she will read the allegations and charges as they are set forth in the NTA.30 The immigration judge will also explain the nature of the proceedings and request that the noncitizen acknowledge service of the NTA, plead to the charges contained in the NTA, designate a country of removal, and submit any applications for relief from removal. After the master calendar hearing, a merits hearing will be scheduled. Prior to and during this hearing, the parties may submit documentary evidence, such as the NTA, 12

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any criminal conviction records, and any travel documents, such as visas or passports that the noncitizen may have legitimately or illegitimately used. Additionally, the parties can present witnesses. The government can present an immigration officer or investigator. Noncitizens can present themselves, their family members, friends or members of the community. The rules of evidence as they are known in the federal courts generally do not apply during immigration hearings because they are administrative proceedings. However, the noncitizen has a right to a full and fair hearing. After the merits hearing, the immigration judge issues an oral decision. If the decision orders the removal of the noncitizen, this is known as the final administrative order of removal. The immigration judge will also notify the parties of their right to appeal the decision to the board of Immigration Appeals and the right to seek judicial review before the U.S. Courts of Appeals.31 Specifically, a party has 30 days to file a notice of appeal of the immigration judge’s decision to the Board of Immigration Appeals.32 Once the board issues a decision, the parties have 30 days within which to petition the appropriate U.S. Court of Appeals for review of the Board’s decision.33 It is important to note that the parties have the opportunity to further brief their case before the board and before the courts of appeals. Noncitizens may secure what is known as a stay of removal, which prevents them from being removed while their case is being adjudicated.34 Thus, the removal proceedings are thorough and provide several opportunities for a noncitizen’s case to be heard before both administrative and judicial bodies. Conclusion While this summary does not even begin to cover the labyrinth that is immigration law, it provides a basic outline of the removal process. There a few key points to take from this. First, whether a noncitizen has been admitted to the United States determines the removal charge that can be brought against him or her and whether he or she will bear the burden of proof in the removal proceedings. Thus, determining whether a noncitizen has been admitted is important. Second, there are various forms of relief from removal and the noncitizen will always bear the burden of proving his or her eligibility for the relief sought. Thus,

it is crucial that a noncitizen present the evidence that supports his or her request for relief. Lastly, there is a process in place to ensure the full and fair adjudication of a noncitizen’s removal. Noncitizens have a right to counsel, though at their own expense. They have the right to present evidence and to have their case heard. And, they have the right to appeal their removal order and to brief their case before the Board of Immigration Appeals and the appropriate U.S. courts of appeals. Additionally, they have the means to obtain a stay of removal, so that they may remain in the United States while their case is being adjudicated. A basic understanding of the immigration removal system may bring a bit of context to the stories and debates we encounter every day. Endnotes: 1. Lindsay Zimliki has been an attorney with the United States Department of Justice, Office of Immigration Litigation (“OIL”), since January 2007. The views expressed in this article do not represent those of the United States government or the Department of Justice. Prior to her employment with OIL, Lindsay practiced with the National Courts section of the Commercial Litigation Branch of the United States Department of Justice. Additionally, Lindsay served as a law clerk to former Chief Judge Lawrence Baskir at the United States Court of Federal Claims. Lindsay also spent a summer teaching a class in international business law in Madrid, Spain. Lindsay earned her J.D. from the University of California, Hastings College of the Law, in 2000, and her B.A. from the University of Arkansas at Fayetteville in 1997. 2. Vartelas v. Holder, --- U.S. ---, 132 S. Ct. 1479, 1484 (2012) (internal citation quotations and citation omitted). 3. Garcia-Mir v. Smith, 766 F.2d 1478, 1483 (11th Cir. 1985); Vartelas, 132 S. Ct. at 1484; see Landon v. Plascencia, 459 U.S. 21, 25-26 (1982) (comparing the two proceedings). 4. Pub. L. No. 104-208, 110 Stat. 3009-546 (1996). 5. See INA § 101(a)(13)(A), 8 U.S.C. § 1101(a)(13)(A) (defining “admission”); 8 C.F.R. § 1000.1(q) (defining “arriving alien”). 6. See INA §§ 101(a)(13)(B) & 212(d) (5)(A), 8 U.S.C. §§ 1101(a)(13)(B) & 1182(d)(5)(A).

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Vol. 49 No.4/Fall 2014 ThePRESERVE Arkansas Lawyer 13

THE JURY TRIAL

7. See INA § 101(a)(13)(B), 8 U.S.C. § 1101(a)(13)(B); 8 CFR § 252.1(d). 8. See INA § 245, 8 U.S.C § 1255. 9. Matter of Rosas, 22 I. & N. Dec. 616, 618-20 (BIA 1999). 10. See e.g., Matter of Alyazji, 25 I&N Dec. 397 (BIA 2011); Hanif v. Attorney General of U.S., 694 F.3d 479 (3d Cir. 2012); Leiba v. Holder, 699 F.3d 346 (4th Cir. 2012); Papazoglou v. Holder, 725 F.3d 790 (7th Cir. 2013); but see, Roberts v. Holder, 745 F.3d 928 (8th Cir. 2014). 11. INA § 240(c)(2)(A), 8 U.S.C. § 1229(c)(2)(A); 8 C.F.R. § 1240.8(b). 12. See INA § 212, 8 U.S.C. § 1182. 13. 8 C.F.R. § 1240.8(c). 14. 8 U.S.C. § 1229a(c)(2), 8 C.F.R. § 1240.8(a). 15. INA § 240(c)(3)(A), 8 U.S.C. § 1229a(c)(3)(A); 8 C.F.R. § 1240.8(a). 16. See INA § 237, 8 U.S.C. § 1227. 17. Note that recent case law has held that where a returning LPR is charged upon arrival as a noncitizen seeking admission for one of the six reasons specified in 8 U.S.C. § 1101(a)(13)(C)(i)-(vi), the government bears the burden of proof. Doe v. Atty Gen. of the U.S., 659 F.3d 266, 271 (3d Cir.

2011); Matter of Rivens, 25 I. & N. Dec. 623, 625 (BIA 2011); see also, Munoz v. Holder, 755 F.3d 366, 371 (5th Cir. 2014). 18. INA § 208, 8 U.S.C. § 1158; INA § 241(b)(3), 8 U.S.C. § 1231(b)(3); 8 C.F.R. § 1208.13; 8 C.F.R. § 1208.16. 19. INA § 240, 8 U.S.C. § 1229a. 20. INA § 245, 8 U.S.C. § 1255. 21. INA § 240b, 8 U.S.C. § 1229c. 22. INA § 240(c)(4), 8 U.S.C. § 1229a(c) (4); 8 C.F.R. § 1240.8. 23. INA § 239, 8 U.S.C. § 1229. 24. Id. 25. Id. 26. INA § 239, 8 U.S.C. § 1229; 8 C.F.R. § 1003.14. 27. INA § 240, 8 U.S.C. § 1229a; 8 C.F.R. § 1003.14. 28. 8 C.F.R. § 1003.14. 29. 8 C.F.R. § 1292.1. 30. INA § 240, 8 U.S.C. § 1229a. 31. 8 C.F.R. § 1003.1. 32. 8 C.F.R. § 1003.38. 33. INA § 242(b), 8 U.S.C. § 1252(b). 34. See Nken v. Holder, 556 U.S. 418 (2009) (setting forth the legal prerequisites for a stay of removal). 

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CRITICAL ISSUES EMPLOYERS NEED TO CONSIDER WHEN SPONSORING Foreign National Workers For H-1B Temporary Work Status/Visa

BY GEORGE ERNST

As the global economy continues to become increasingly complex and competitive, it is abundantly clear that U.S. employers must hire the best and brightest workers. Many U.S. employers are particularly concerned about hiring capable workers, especially in the STEM fields (i.e. science, technology, engineering and mathematics). For most employers the nationality of the employee is not as important as the ability of the employee to perform the required skills.1 Employers who either desire or need to employ foreign nationals in highly skilled positions must adequately prepare and plan to ensure a greater likelihood of success. This article will discuss the general requirements and issues related to one of the most common forms of sponsorship for foreign national workers, the H-1B temporary work visa (“H-1B”). Advantages of the H-1B The H-1B has many advantages over other forms of employer sponsorship. Since the H-1B requirements specifically correlate with professional positions requiring obtainment of a bachelor’s degree in a specific field, the H-1B is an excellent category for employers hiring highly skilled foreign national U.S. college and university graduates. H-1B sponsorship also does not require the employer to first attempt to recruit U.S. workers for the particular position. 16

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The H-1B program also permits employers to sponsor qualifying foreign national employees for a nonimmigrant work visa for an initial period of three years, and the employer may petition to extend the employee’s H-1B status up to a maximum of six years. Additionally, unlike many other nonimmigrant visa categories, the H-1B permits the foreign national to have “dual intent,” i.e., both “nonimmigrant” and “immigrant” intent. This permits the employer to con-

currently sponsor the foreign national for an H-1B and employment-based permanent residency.2 Finally, the H-1B also permits the employer to hire a foreign national for part-time employment, and a foreign national with H-1B status may be sponsored concurrently by another employer for part-time H-1B status. H-1B General Requirements Generally, an employer may petition a foreign national employee for an H-1B, if that employee will be employed in a “specialty occupation,” as a fashion model of distinguished merit and ability, or a person providing service related to the Department of Defense.3 In order for the proffered position to qualify as a specialty occupation, the position must require a theoretical and practical application of highly specialized knowledge and a bachelor’s or higher degree for entry into the field.4 Both the foreign national employee and the proffered position must satisfy the H-1B requirements. In order to demonstrate that the proffered position is a “specialty occupation” the employer must prove that the position meets one of the following criteria: •

A bachelor’s or higher degree or its equivalent is the normal requirement

•

for entry into the particular position; The degree requirement is common in the industry in parallel positions among similar organizations or the particular position is so complex or unique that a degree is required; The employer normally requires a degree or equivalent for the position; or The nature of the specific duties is so specialized and complex that knowledge required to perform the duties is usually associated with attainment of the degree.5

The easiest way for the foreign national to prove that he or she has satisfied the degree requirement is by providing evidence that the foreign national has obtained a bachelor’s degree in the relevant field from a U.S. college or university. If the foreign national received his or her degree from a foreign college or university, then a foreign equivalency evaluation will be necessary to prove that the degree is the equivalent of a U.S. degree. If the foreign national has not obtained a degree, but has substantial experience or taken courses toward a degree, this requirement may also be satisfied by providing an equivalency letter demonstrating that the foreign national employee has met the requirement through a combination of education and/or experience. Generally, three years of relevant work experience will count as one year toward a U.S. bachelor’s degree.6 For many occupations, such as computer programmers or other STEM field positions, meeting the specialty occupation requirement is fairly straightforward, since a degree in a specific field is required. However, for other positions, such as marketing, human resources, etc., where there is no degree that specifically correlates with a specific subject area, the United States Citizenship and Immigration Services (USCIS) has begun taking a stricter interpretation of the bachelor’s degree requirement. In such instances, it may be necessary to provide further evidence and documentation that the foreign national’s degree was specialized by focusing on the course work completed by the foreign national.7 A difficult employers may face is proving to USCIS that the highly skilled position actually requires a bachelor’s degree. For example, a highly skilled executive position in the culinary arts will typically not require

a bachelor’s degree, but may instead require over a decade of advanced work experience. Fortunately, the regulations permit such a position to meet the requirements of a specialty occupation as long as the nature of the specific duties are so specialized and complex that the employer can demonstrate that the equivalent of a bachelor’s degree is required to perform the duties.8 If the employer and foreign national believe that they can meet the general requirements, then the employer should begin the process of considering H-1B sponsorship. Particular Issues Regarding H-1B Sponsorship The employer must consider the following particular issues as they will dictate important deadlines and procedures to maximize the chances to successfully sponsor the foreign national for an H-1B. 1. H-1B Numerical Limitation One of the significant drawbacks of the H-1B visa is the numerical limitation of H-1B visas allowed during the U.S. fiscal year. Currently, there is an annual numerical limitation of 65,000 regular H-1B visas (“regular cap”) plus an additional 20,000 H-1B visas reserved for foreign nationals who have earned advanced degrees (e.g., master’s degrees or above) from a U.S. university. After the 20,000 visas are issued to foreign nationals with advanced degrees, all remaining advanced degree individuals will be included and counted against the regular cap. Thus, in total there are only 85,000 available H-1B visas each U.S. fiscal year. Most employers will be subject to the numerical limitation; however, some employers will be exempt. In general, only institutions of higher education (as defined by 20 U.S.C. § 1001(a)) or nonprofit

research organizations or governmental research organizations are exempt.9 Additionally, the annual numerical limitation only applies to new H-1B petitions and does not include extensions for existing H-1B workers, or H-1B workers previously counted against the cap filing a new petition to change employers.10 Unless the employer or the employee is exempt from the numerical limitation, the numerical limitation is important for the employer to consider. If there is an increased demand for H-1Bs, then the foreign national may have a lower chance of success in being selected in the numerical limitation. It may be possible to glean insight by looking at the number of H-1Bs filed in previous U.S. fiscal years to determine whether demand will be high or low, it is not possible to know with certainty the nature of H-1B demand until the H-1B filing period begins. 2. Limited Deadline to File an H-1B Because of the H-1B numerical limitation, employers must be aware of some very important timing and deadline considerations. The numerical limitation for H-1Bs is tied to the U.S. fiscal year, which begins on October 1. The regulations permit employers to file H-1B applications up to six months prior to the employment start date. Since the first day of the U.S. fiscal year is

GEORGE ERNST is an immigration attorney at Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C. in Little Rock, focusing on business, employment and investor-based immigration.

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

October 1, the earliest date that an H-1B petition can be filed for the upcoming U.S. fiscal year is April 1, assuming that the effective employment date with H-1B status is October 1.11 All cap-subject H-1B petitions filed after the numerical limitation is met will be rejected for that U.S. fiscal year. Because of the numerical limitation and recent increased demand for foreign national employees sponsored with an H-1B visa, the April 1 filing date has become increasingly important. Because of the numerical limitation, current immigration policy dictates that USCIS must accept all petitions filed by employers with an October 1 employment start date during the first five business days of the H-1B filing season (i.e., April 1 – April 5), even if the numerical limitation is met during that five-day period. If the numerical limitation is met during the five-day filing period, then USCIS will conduct a random selection process to determine which petitions will be counted against the numerical limitation for that U.S. fiscal year.12 This is often referred to as the “H-1B lottery.” Petitions selected in the H-1B lottery will be adjudicated and if approved counted against the cap. Petitions not selected in the H-1B lottery will be returned. In April 2013 there were over 124,000 applications received within the first five days of the H-1B filing season, and in April 2014, there were over 174,000 applications received within the first five days of the H-1B filing season. As such, in the last two years an H-1B lottery was conducted where many H-1B petitions were not selected for adjudication and returned. Unless Congress authorizes an increase in the number of available H-1B visas, it appears that capsubject employers must prepare to file an H-1B petition no later than April 1, to be included in the H-1B lottery. 3. Prevailing Wage & Labor Condition Application One of the biggest surprises for an employer interested in sponsoring a foreign national for an H-1B is the realization that the employer will be held to a strict wage requirement. In order to protect both the U.S. workforce and foreign national workers, the employer will be required to pay the H-1B worker a wage that is no less than the actual wage paid to similarly qualified workers or the prevailing wage, whichever is greater. 18

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Generally, the prevailing wage is based upon the Foreign Labor Certification Data Center (FLC). The FLC breaks down each employment category into four wage levels based upon the position’s requirements as it relates to experience, education and level of supervision. Wages are also determined based upon the geographic location where the employment will be performed. If the FLC wage is too high or the employer does not normally pay its employees the FLC wage listed, then it may be possible to have the employer provide an alternate wage survey to the Department of Labor (DOL) to demonstrate that wage meets the requirements. However, using an alternate wage survey may take additional time to certify the wage. Thus, an employer should determine as early as possible whether it will need to use an alternate wage survey. Additionally, the employer may not generally deduct the costs associated with the H-1B petition from the employee’s wages. It is generally impermissible for the employer to deduct any of the H-1B fees, i.e., the government filing fees or attorney fees, when those deductions would lower the worker’s wages below the prevailing or actual wage. Before an H-1B petition can be filed, the employer must first obtain a Labor Condition Application (LCA) from the DOL.13 The LCA’s purpose is to certify that the wages paid to the H-1B employee meet the wage requirements pursuant to the regulations.14 It may take seven days for an LCA to be certified. However, if the employer’s FEIN is not verified by the DOL, the employer may need to provide further documentation to prove the employer’s FEIN. If the employer must provide further documentation, this can increase the processing time to receive the LCA. After the LCA has been certified the employer will need to sign the LCA and file it with the H-1B petition. If the employer fails to pay the H-1B employee the wage pursuant to the LCA the employer can be subject to fines and debarment from sponsoring other foreign nationals. Conclusion Proper preparation and adequate planning are the keys to an employer’s success in sponsoring a foreign national for an H-1B. When sponsoring a foreign national, employers and employees should consider the potential issues with H-1B sponsorship and explore

potential alternatives to allow for the best chances of successful sponsorship. Endnotes: 1. Rodney C. Adkins, America Desperately Needs More STEM Students. Here’s How to Get Them. (July 9, 2012, 3:32PM), http:// www.forbes.com/sites/forbesleadershipforum/2012/07/09/america-desperatelyneeds-more-stem-students-heres-how-toget-them/. 2. In immigration law, “nonimmigrant” generally refers to all visa categories where a foreign national seeks temporary entry to the United States for a specific purpose, and does not involve establishing permanent residency in the United States. “Immigrant” generally refers to foreign nationals seeking permanent residency status (e.g., a green card) in the United States. 3. See 8 C.F.R. § 214.2(h). This article will not discuss in detail H-1B sponsorship for fashion models or individuals providing services for the Department of Defense. 4. See 8 C.F.R. § 214.2(h)(4)(ii). 5. See 8 C.F.R. § 214.2(h)(4)(iii)(A). 6. See Shanti, Inc. v. Reno, 36 F. Supp. 2d 1151, 1161–66 (D. Minn. 1999). 7. See id. But see The Button Depot, Inc., v. DHS, 386 F. Supp. 2d 1140 (C.D. Cal. 2005). 8. Matter of ___, EAC 03-143-51185 (AAO Jan. 28, 2005); Matter of ___, WAC 02-136-52595 (AAO Dec. 13, 2002). 9. See, INA § 214(g)(5)(A)&(B). 10. In limited circumstances there may be other forms of employment that will meet the requirements to be considered “capexempt.” 11. In rare circumstances it may be possible for the employer to file for an H-1B during the current fiscal year. However, due to the increased demand for H-1B visas, the numerical limitation has been met either during, or more typically, before the fiscal year begins. Because of the numerical limitation, most employers should plan on selecting October 1 as the effective employment start date. 12. See 8 C.F.R. § 214.2(h)(8)(ii)(B). 13. See 20 C.F.R. § 655.700(a)(3). 14. See 20 C.F.R. § 655.731(c)(2). 

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IMMIGRATION ISSUES FOR EVERY EMPLOYER

BY MISTY WILSON BORKOWSKI

Immigration law in the United States impacts employers of every size. This is true even without employing any foreign nationals. As federal enforcement in the employment eligibility verification compliance continues to rise, employers must be aware of how they are impacted by immigration laws as the financial and even criminal consequences for failure to comply can be significant. This article addresses two aspects of employment-related immigration law that every employer should consider: Form I-9 Employment Eligibility compliance and employment-based immigration practices. Form I-9 Compliance Employment Eligibility Verification1 First and foremost, even without employing any foreign nationals, every employer must comply with the Form I-9, Employment Eligibility Verification.2 Specifically, the law requires employers to verify the identity and the employment eligibility of newly hired individuals. By completing the Form I-9, the employer is certifying that the person is who he or she purports to be and is duly authorized to work in the United States. It is no surprise that “new hire” orientations often consist of what seems like an entire day of completing both internal and external forms. In addition to the IRS W-2 Form for tax withholding purposes and selecting health, dental and vision options— not to mention review and acknowledgement of the employment handbook—the employee must complete Section 1 of the Form I-9 on the first day of employment. Moreover,

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the employer must complete the remaining section regarding identity and employment authorization within three business days of the employee’s first day of work. Because this form is tossed in with all of the other forms, it is not uncommon that it is viewed as a mere administrative matter with little significance, value, or importance. Employers should be aware, however, that failure to accurately and correctly complete Form I-9 can have dire consequences for the employer, including fines, penalties, and even criminal sanctions up to imprisonment. Form I-9 enforcement typically begins with the receipt of a “Notice of Inspection” from U.S. Immigration and Customs Enforcement (ICE). The Notice will indicate that ICE is undertaking an administrative inspection of the company’s Form I-9 compliance and that it must produce the I-9 forms within three business days. ICE agents or auditors will then inspect the forms for compliance. An

employer will be allotted 10 days to correct technical or procedural violations.3 Failure to make these corrections or the presence of substantive violations may result in significant fines. Penalties for substantive violations range from $110 to $1,100 per violation. If an employer is found to have “knowingly” hired or continued to employ unauthorized workers,4 it may be fined ($375 to $16,000 per violation), and in certain situations, may be criminally prosecuted. ICE considers five factors in determining the appropriate penalty: (1) the size of the business; (2) good faith effort to comply; (3) seriousness of the violation; (4) whether the violation involved unauthorized workers; and (5) any history of previous violations. Substantive or unresolved technical violations result in either a “Warning Notice” or a “Notice of Intent to Fine,” which is then resolved through a settlement or by a hearing if an agreed settlement is not accomplished. I-9 Audit is Recommended Turnover is a fact of employment—particularly in the department of human resources. Because the importance of Form I-9 compliance may be lost during “new hire” orientation, employers should strongly consider performing an “in-house” audit or hiring an attorney to perform the audit on the employer’s behalf. Attorneys who have a keen eye for details regularly report that an audit of their clients’ I-9 forms for compliance typically have a 90% fail rate. For instance, employees frequently write the date of birth where “today’s date” should have been written, and

HR personnel frequently place the information for identification documents in the wrong column and/or barely fill in the information regarding the employment authorization documents provided by the employee. While seemingly simple and understandable mistakes, both are considered technical violations subject to the fines enumerated above. Performing an I-9 audit now has advantages: it provides the employer with the opportunity to detect and properly correct the error before an ICE audit; it demonstrates the employer’s good-faith effort at compliance; and it re-emphasizes the importance of I-9 compliance and training of HR personnel as it helps illustrate the frequency of mistakes on an otherwise simple form. Organization and Maintaining I-9 Records Record retention is another area of considerable interest during an ICE investigation. First and foremost, while the distribution of the form during a “new hire” orientation may suggest otherwise, I-9 forms are NOT to be maintained in the employees’ personnel files. Second, the forms should be organized in separate categories as follows: (1) Current Employees; (2) Employment Re-Verification Required; and (3) Former Employees. When an expiring employment authorization is subject to re-verification, the date should be calendared so that it is not overlooked or forgotten. And, when the I-9 Form for a former employee is no longer required to be maintained in accordance with the applicable retention requirements, the form should be destroyed. In 2010, well-known clothing retailer Abercrombie and Fitch negotiated a $1,047,110 fine settlement for violations related to the Form I-9. While there were no instances of knowingly hiring unauthorized aliens, the violations stemmed from the numerous technology-related deficiencies in the company’s I-9 verification system. However, in October 2013, in a case involving more egregious violations, Infosys Limited was fined $34 million based upon allegations of systemic visa fraud and abuse of immigration process. The company—based in India and located in 30 countries and 17 U.S. cities—was alleged to have intentionally deceived immigration officials and abused the visitor visa (B-1) category by then putting foreign nationals on B-1 visas to work for the company. Because a B-1 visa holder

is not authorized to work within the United States, naturally this resulted in I-9 violations stemming from employing these individuals without proper employment authorizations. Employment-Based Immigration Beyond Form I-9 compliance, employers in every industry, big and small, find that the foreign national workforce is becoming more relevant than ever before. Employers now have to learn a completely new language—not the native language of the foreign national, but “immigration” terminology—acronyms and terms like OPT, CPT, STEM Extension, H-1B, nonimmigrant vs. immigrant, TPS, PERM process, consular processing, etc. Unless a foreign national is already a U.S. citizen or a “lawful permanent resident” (i.e., green card holder), then in all probability her visa status will expire. The employer must know when the visa status will expire and be aware of what steps must be taken in order to keep the employee “in status.” There are limitations to how long a foreign national can remain in a certain visa category, so the employer must always be looking ahead at what options might be available for the foreign national and employer. Types of Employment-Based Visas Overall, there are two major categories for foreign nationals—nonimmigrant or immigrant. A nonimmigrant is someone who is in the United States “temporarily,” meaning that his or her authorized period of time to live, study, and/or work in the United States will expire within a certain period of time. On the other hand, an immigrant is someone who is in the United States “permanently,” meaning that he has obtained “lawful permanent residency” (i.e., the green card).

Non-immigrant Visas5 B-1/B-2 Visitor visa:6 This visa allows a foreign national to enter the country as a visiting tourist or business visitor. A business visitor visa authorizes the foreign national to travel to the United States for business purposes—attend a conference, trade show, business meeting, negotiate contracts, as well as other limited business activities. A tourist visa is authorized to come into the United States but is not allowed to work. The period of time authorized to remain in the United States is six months to a year. However, while citizens of certain countries participating in the Visa Waiver Program (VWP) are allowed to travel to the United States without a visa (after receiving a valid Electronic System for Travel Authorization (ESTA) approval prior to travel), the period of authorized stay will be for 90 days or less. J-1 Exchange visitor:7 This type of visa is obtained through an exchange sponsor, designated by the U.S. Department of State, which has approved programs designed to promote interchanges in education, arts, and sciences. These are typically utilized by high school students, au pairs, camp counselors, teachers, even professors or scholars, as well as others. It is important to be aware that some J-1 visas come with a “two-year residency” requirement, which requires the foreign national to return to the home country for two years after

MISTY WILSON BORKOWSKI is an attorney with Cross, Gunter, Witherspoon & Galchus, P.C. in Little Rock focusing on immigration law, federal criminal law and criminal appellate practice.

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

completing the exchange. Obtaining a “waiver” of the residency requirement is required before the individual can change to a different visa category and remain in the United States. F-1 Student visa:8 Traveling to the United States to live and study is often a foreign national’s first real extended introduction to the United States. To enter on a student visa, the foreign national must have demonstrated to the consulate official that he or she has been accepted by a school (high school or university) in which to study and has the financial resources to pay for the tuition, books, and living expenses. A student visa holder (college-level) is not allowed to work within the first academic year and, even thereafter, the student will only be allowed limited on-campus employment, except in exceptional circumstances. OPT, STEM extension, CPT:9 Upon graduation, college graduates are authorized to obtain employment, Optional Practical Training (OPT), in the field of study completed for one year. If the degree was in a STEM (science, technology, engineering, or mathematics) subject, and the employer is a participant of E-Verify, then the student may obtain a STEM extension authorizing him or her to work for an additional 17 months. For the STEM extension, the degree must be on the STEM Designated Degree Program List.10 Therefore, students and universities must be savvy when selecting the degree and assigning the “code” associated with the degree. Minor differences in the degree and code designated can be the difference in qualifying for the STEM extension. Curriculum Practice Training (CPT) allows graduatelevel students to obtain employment in the field of study. H-1B “Specialty Occupation”:11 Most often after an employer has hired a recent college graduate on OPT, the employer will want to retain the employee beyond the allotted one year. The next logical step for the foreign national is to obtain an H-1B visa. The complexity of this process warrants a more thorough discussion—to wit, see George Ernst’s article on page 16 of this magazine. L-1A and L-1B “Intercompany Transferee” employees:12 U.S. companies with a corporate relationship (parent, affiliate, subsidiary, or branch) with a foreign entity abroad may petition for an employee of the foreign entity to transfer to the United States to work. There are two categories: L-1A is for a manager, executive, or supervisor and 22

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L-1B must be a worker with “specialized knowledge.” The foreign employee must have worked for the foreign entity for at least one year out of the last three years. If filing for a position as management or executive, the year of employment with the foreign entity has to be in a management position. Specialized knowledge means either special knowledge possessed by the foreign national of the company’s product, service, research, equipment, techniques, management or other interests or advanced level of knowledge or expertise in the company’s processes and procedures.13 The L-1A visa holders may be in the United States for six years, but the L-1B visa holder is limited to only five years. The above-listed non-immigrant visa categories are not a comprehensive list. However, these are the most common visas that employers are most likely to deal with. Immigrant Visas An immigrant is a foreign national who, through a familial relationship or employment relationship, is authorized to live, work, study, and remain in the United States permanently. The “lawful permanent resident” (LPR) is most often referred to as someone with a “green card.” A family-based immigrant petition typically does not involve the employer.14 Conversely, an employmentbased petition is an employer-driven petition.15 Employment-based petitions involve a complex process that are an investment of time and money. The process typically begins when the employer has a valued employee currently working on a non-immigrant visa. Looking ahead, the employer does not want to lose the employee and has a vested interest in filing for the foreign national to become a lawful permanent resident. The minimum education and employment experience for the offered position will determine the category of the visa that is sought by the employer and foreign national. The typical process can be divided into five major steps: Step I: First, the employer submits a job description to the Department of Labor in order to obtain a Prevailing Wage Determination (“PWD”). Step II: Once the PWD is received, the employer must then advertise the position to determine if there are any United States qualified candidates (this includes an LPR, or green card holder) for the position. While the

employer can begin advertising the position before submitting or receiving the PWD, it is risky to do so. If the PWD comes back at a wage/salary higher than expected or advertised, the employer must readvertise the position using the higher rate. During the recruitment process the employer may receive applications for the advertised position. If there are qualified United States workers, then the employer is no longer able to move forward with the petition process. The employer does not look for the “most qualified candidate,” but instead must evaluate whether the applicant meets the minimum education and employment experience requirements stated for the position. Step III: If there are no qualified United States candidates, the employer then submits an Application for Permanent Labor Certification (“PERM”) to the Department of Labor. It is critical for the employer and foreign national employee to carefully review the drafted PERM application prior to submission because it cannot be changed, modified, or revised once it has been submitted. Step IV: Upon certification of the PERM application, the employer is then able to file the Immediate Petition for Alien Worker. This application is verification that: (a) the employer is offering a permanent position to the foreign national; (b) the employer has the financial ability to pay the offered wage/ salary; and (c) the foreign national employee has the requisite education and employment experience (if applicable) for the offered position. Step V: Only upon approval of the employment-based petition, the foreign national must have a visa available based upon the priority date of the PERM application and the foreign national’s nationality. Once the visa is available (either as a “current” or based upon the “priority date”), the foreign national may then, by either consular processing or adjusting status from within the United States, apply to become a Lawful Permanent Resident. Again, the process discussed above is that of the “typical” case. There are categories of individuals or positions that require a variation of this process. Each job position and foreign national seeking to become an LPR through the employment-based immigration process should be carefully evaluated by an attorney experienced in, not only immigration law, but the employment-based immigration process.

Conclusion In a global economy, it is more important than ever that key personnel be able to cross borders expeditiously and with certainty and frequency. As a result, the roles and responsibilities of human resources professionals must evolve to meet the increased pressures of a globalized workforce while weathering heightened government scrutiny of employment practices. Without question, every employer should carefully evaluate its Form I-9 process to mitigate the financial and even criminal liability related to noncompliance. Likewise, because employment-based immigration is not a one-dimensional progression, HR professionals should acclimate themselves with the various stages of the immigration process to prepare for the inevitable need to employ foreign nationals. Endnotes 1. 8 U.S.C. § 1324(a)(b). 2. 8 C.F.R. § 274(a)(2). 3. 8 U.S.C. § 1324a(b)(6)(B). 4. 8 U.S.C. § 1324a(a)(1)(a) or (a)(2). 5. 8 C.F.R. § 214.1(a). 6. 8 C.F.R. § 214.2(b). 7. 8 C.F.R. § 214.2(j). 8. 8 C.F.R. § 214.2(f). 9. 8 C.F.R. § 214.2(f)(10)-(12). 10. STEM Designated Degree Programs, U.S. Immigration and Customs Enforcement, available at http://www. ice.gov/sevis/stemlist.htm (last accessed September 1, 2014). 11. 8 C.F.R. § 214.2(h)(i)(B). 12. 8 C.F.R. § 214.2(l). 13. 8 C.F.R. § 214.2(l)(1)(ii)(D). 14. 8 C.F.R. § 204.2. 15. 8 U.S.C. § 1153(b). 

Your Name in Print For information on submitting articles for publication, go to http://tinyurl.com/ thearkansaslawyermag or email ahubbard@arkbar.com Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

THE FACE OF THE ARKANSAS COURTS AND THE COMMUNITIES THEY SERVE

BY J.D. GINGERICH

A recent issue of The Arkansas Lawyer was devoted to the topic of diversity in our state’s legal profession and law schools.1 This article extends that examination to the Arkansas state court system—the judges, public attorneys, clerks and other court staff who comprise the “face” of our courts. This examination is based upon a convergence of three topics which have been of primary interest to those who study the courts in recent years: 1) the level of public trust and confidence in the court system and the system’s reliance upon that trust to carry out its mission; 2) the concept of procedural fairness and the factors which most influence the perceptions of parties to litigation; and 3) the developing neuroscience research on implicit bias and its potential impact upon the courts. Public Trust and Confidence The ability of the court system to function is primarily dependent upon the trust and confidence which the public has in the system. There is a positive relationship between the respect for and trust in the court and the willingness to accept its findings and abide by its rulings. Luckily, the public’s perception of our courts remains positive, despite a recent decrease in the trust in public institutions generally. As part of the National Conference on Public Trust and Confidence in the Justice System, a national survey was commissioned by the National Center for State Courts on the public’s perception of the court system.2 While a majority of Americans expressed trust in American institutions overall, courts ranked somewhere in the middle, with the strongest support for the medical profession and law enforcement and the least support for legislative bodies and the media. There were several positive findings, with 79% of the respondents agreeing that judges are fair and honest in deciding cases and 74% agreeing that court 24

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personnel are helpful and courteous. In a separate survey commissioned the same year by the ABA, 80% of the respondents agreed that “in spite of its problems, the American justice system is still the best in the world.”3 The more troubling findings of the NCSC survey concern perceptions of unequal treatment. Many Americans express doubt that all parties receive equal treatment from the courts. Almost half of all respondents stated their belief that blacks and Hispanics receive “worse” or “far worse” treatment by the courts than others. Only 23% of the black respondents believed that the court system treats blacks the same as others. In a 2005 study published by the California Administrative Office of the Courts,4 a majority of all respondents stated that blacks and Hispanics usually receive less favorable results in courts than others, and among black respondents 87% thought that blacks receive unequal treatment. These general findings have been replicated in other state and national surveys since that time.5 These perceptions are also shared by many members of the bench and bar. In a survey of 809 federal district judges, 83% of the white judges agreed that “black litigants are treated as fairly as others in the justice system,” a belief shared by only 18% of the black judges.6 In a joint research project initiated by the ABA and the National Bar Association, perceptions of unequal treatment in the justice system among lawyers of different races were similar to the perceptions within the general public.7 No state-wide surveys have specifically addressed the issue in Arkansas, but the excellent series of annual reports published by the University of Arkansas at Little Rock have examined racial attitudes in Little Rock and Pulaski County. The 2013 report8 included questions concerning the judicial system. As to the issue of “trust,” approximately two-thirds of the white respondents reported that they had a “great deal” or “quite a lot” of trust in the

judicial system, a view shared by only one-third of the black respondents. In response to questions about confidence that courts will treat all people fairly, white respondents were significantly more likely to have confidence than were blacks or Hispanics. As to a more specific question about whether the courts would treat blacks as fairly as others, more than one-half of black respondents reported “very little” or “just some” confidence. This compares with approximately 25 percent of white respondents. Arkansas judges and other court leaders are dedicated and extremely sensitive to the issues of fair and equal treatment of all who come before them, without regard to such issues as race and ethnicity. Unfortunately, the public perception is different. To be viewed as fair and impartial is critical to public trust and confidence, and the public’s trust and confidence is critical to the legitimacy and effectiveness of the court as an institution. In his 2010 State of the Judiciary address, Chief Justice Jim Hannah stated: In every speech I have given since becoming Chief Justice I have made the statement that the success and viability of our court system is dependent upon the trust and confidence of the public. It is important that our decisions … are color blind. But it is equally important that our system be perceived as fair and impartial … we must take seriously the public’s perception and do all that we can to create and sustain a system which is fair and impartial, both in fact and in appearance.9 Procedural Fairness John Thibaut and Laurens Walker published their seminal work on the theory of procedural justice in 1975.10 Their findings that parties involved in litigation care more about how they are treated by and during the litigation than whether they won or lost the case

Race of Arkansas Circuit and District Court Personnel

Race of Arkansas General Population

0.8% 0.6% 0.8% 6.4%

11.7%

    

White African-American Hispanic Other Not Available

3.5%

15.3%

74.7% 86.1%

were initially received with great skepticism, especially by the legal community. Subsequent research over many years, however, has confirmed their initial theory. In the minds of litigants, the importance of a favorable outcome is consistently outweighed by the impact of an unfair process; in other words, a prevailing litigant might look back upon a recent court experience and say “yes, I won the case, but I don’t know if it was worth it. It cost me too much, the judge wouldn’t let me speak, I didn’t understand what the judge was talking about, I was treated like dirt. I hope I never have to go through that again”. On the other hand, an unsuccessful litigant can leave the courtroom saying, “I lost my case but I had my day in court, I was treated fairly, I can move on.”11 The American Judges Association has brought the importance of procedural justice into the mainstream of judicial practice with the publication and adoption of the policy statement “Procedural Fairness: A Key Ingredient in Public Satisfaction.”12 Arkansas judges first included the topic as a part of their education conference in 2009. It can be difficult for judges and lawyers—who are trained to believe that a thorough development of the relevant facts and correct application of the law will produce an outcome which is fair—to discover or accept that other factors may have a greater impact on the public’s perception of what is fair. The research now suggests that there are four factors which most affect a litigant’s belief that the proceeding was “fair” and make it more likely that the litigant will comply with the court’s order. They include • Voice. People want an opportunity to participate in the process and to tell their side

of the story. • Neutrality. People need to see that the decision is based upon law, not personal opinions, and is applied consistently. • Trust. People are just as concerned with the character as with the competence of the judge and form opinions about whether the judge “cares” about the litigants or the outcome. • Respect. People need to feel that authorities take their concerns seriously and treat them with courtesy and politeness.13 These factors have a direct impact upon the core mission of the judicial branch. They are also important in light of the distrust expressed within our minority populations. If it is true that attention to procedural justice issues can impact trust and confidence in the system, a review may prove helpful in responding to these concerns. Implicit Bias For many years social scientists have studied and documented the process by which humans form attitudes and stereotypes about a wide variety of people, objects and situations as a way by which to more efficiently navigate the world. Much of the research has centered on identifying areas of implicit bias and studying the ways in which such attitudes and stereotypes are formed. These issues have been noted and discussed within the context of judges, courts and the legal system for many years.14 Much more recently, neuroscientists have entered the field.15 Advances in the study of the brain have made it possible to locate the areas of the brain and the physical processes by which the brain receives, sorts, calculates, and manages enormous amounts of incoming information needed by humans to constantly make routine decisions. It appears that the development of stereotypes and biases is not just a personal or cultural phenomenon but rather a way in which all humans are “hardwired” to both remain safe and operate effi-

ciently. Because these biases are automatic they can impact our behavior and our decisions without our even being aware. Last October members of the Arkansas judiciary heard a fascinating presentation by Kimberly Papillon, a lawyer and national presenter on the neuroscience and psychology of legal, judicial and medial decision making. With the growing and compelling body of scientific research which documents the existence of implicit bias in all humans, she argued that we can now move past arguments about whether such bias exists and focus instead on how we recognize it and guard against it in our roles as judges and lawyers.16 Other studies have shown that while implicit biases exist in all populations, including the judiciary, “judges seem to be aware of the potential for bias in themselves and possess the cognitive skills necessary to avoid its influence.”17 The writing and research on implicit bias in the court system has centered on its potential impact upon judges; it may also be relevant to those on the other side of the bench. Imagine for a moment that you are a litigant in a courtroom and as you view the room you find that you are of a different race or ethnicity than everyone else present. The judge, the lawyers, the bailiff, the court reporter, the court clerk, perhaps even the members of the jury—all appear different than you. The scientists who study the brain would tell us that this scenario

J.D. GINGERICH has served as the Director of the Arkansas Administrative Office of the Courts since 1988.

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

Table 2. Over-representation of Whites among Court Personnel by Circuit (% White of Court Personnel - % White of General Population)     

Less than 5% 5% - 10% 10 - 15% 15% - 20% Greater than 20%

Table 3. Under-representation of African-Americans among Court Personnel by Circuit (% African-American of General Population - % African-American Court Personnel)      

Equal or Over-representation Less than 5% 5 - 10% 10% - 15% 15% - 20% Greater than 20%

Table 4. Under-representation of Hispanics among Court Personnel by Circuit (% Hispanic of General Population - % Hispanic Court Personnel)   

would likely produce an unconscious reaction in the brain of our imaginary litigant, provoking feelings of fear and distrust. This response would result without the litigant having any actual knowledge about or experience with any of the other people in the room and would be similar if the litigant was white and the other participants black or vice versa. Thus, the mere “face” of the court system may be very important to how a member of the community reacts and responds to the court system. Connecting the Dots How are these three areas of research—public trust, procedural justice and implicit bias— connected? The proposition is a fairly simple one. Arkansas’ minority populations express 26

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Less than 5% 5 - 10% More than 10%

less trust and confidence in the Arkansas court system and its ability to provide fair treatment to all persons. Two of the factors which impact the public’s perception of the court system are trustworthiness and respect. Studies on implicit bias indicate that our brains are much more likely to initially trust and respect people who look like we do. Public trust and confidence in the institution of the courts can be enhanced when members of the public can observe someone who is a part of the institution who looks and sounds like themselves. The courthouse environment becomes more welcoming and less threatening. The bottom line is that one way those of us in the court system can respond to the distrust found among many in our minority

communities is to insure that the “face” of our court system is somewhat similar to that of the community it serves. So how are we doing? The Arkansas Survey For this study, demographic information was collected about all persons who are likely to be seen by litigants during the court process and might be assumed to be a part of the court system. The racial and ethnic breakdown of employees of the Arkansas Supreme Court, Arkansas Court of Appeals, and Administrative Office of the Courts was received directly from those agencies. Information about elected Prosecuting Attorneys and Deputy Prosecuting Attorneys was provided by the Prosecutor Coordinator Commission. Information about Public Defenders was provided by the Arkansas Public Defender Commission. In December 2012 a written survey was distributed to all Circuit Judges, Circuit Clerks, County Clerks, and District Clerks to obtain additional information about employees who work in these offices. Telephone follow-up with each office was attempted to supplement any data missing from the written surveys. All data collection and compilation was performed by Andrew Walchuk, then a Policy Analyst at the Administrative Office of the Courts and now a law student at Yale University. The data includes almost 3000 state, county and local employees. The data analysis compares the racial and ethnic breakdown of the officials and employees by judicial circuit and by county to that within the general population of those areas. Arkansas has experienced a rapid growth in the population of Hispanic residents, increasing by 114% between 2000 and 2010. The black population decreased by over 7% during the same period. Table 1 shows the statewide comparison between the general population and all circuit and district court officials and employees. Blacks comprise 15.3% of the general population compared with 11.7% of the court population. Hispanics make up 6.4% of the general population compared to only 0.8% of the court population. Tables 2, 3 and 4 provide a geographic illustration of the comparison between the court population and the general population by judicial circuit, with a separate comparison for whites, blacks and Hispanics. Table 2 shows the areas of the state with the greatest over-representation of white employees as compared to the general population. Tables 3 and 4 show a similar comparison, based upon the under-representation of blacks and Hispanics among judges and court employees as compared to the general

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population. (More complete data and findings cas be accessed at courts.arkansas.gov). What Now? While these general comparisons seem to show there are differences between the face of the courts and some of the communities they serve, the question remains as to what response is required. It should be noted initially that the data and statistical comparisons are far too simplified to be able to reach any more than a general impression. It is arguable, for example, that the inclusion or omission of particular groups of employees within the data is inappropriate or misleading. The combination of elected and non-elected officials may distort the picture. Further, it is arguable that a comparison to the general population is not appropriate when considering the election or employment of persons in positions which require professional credentials, such as a law degree. These and similar concerns provide sufficient reason to justify caution in drawing any specific conclusions from the data. If nothing else, the information may provoke those of us who have some authority in the selection and employment of court employees to become more sensitive to the issue. We are not in control of who will be elected to serve as judges, prosecuting attorneys, or circuit and county clerks—that responsibility rests with the voters. Once elected, however, all of the leadership within the judicial branch can and should work together toward a more diverse workforce which is reflective of the communities in which we work. The importance of the issue has been noted by other state court leaders from across the country. A resolution of the U.S. Conference

of Chief Justices notes that all courts should take a leadership role to insure that they “better mirror the racial and ethnic makeup of the communities they serve.”18 A paper published by the U.S. Conference of State Court Administrators provides that all state courts should “develop strategies to promote a representative workforce.”19 The National Action Plan developed as a response to the National Conference on Public Trust and Confidence in the Justice System ranked the most important strategies which courts should adopt and included “make the courts more inclusive” and “make the courts more demographically representative of the community they serve.”20 Several state supreme courts have adopted specific plans for their court systems designed to support a more representative workforce.21 The courts in Washington state have published a massive but very practical guide for hiring and retaining a diverse workforce.22 It distinguishes appropriate concerns about diversity in our courts from hiring quotas or affirmative action plans, noting that the goal is not about legal hiring requirements but rather about increasing the public’s confidence in the court system. Arkansans have done an excellent job of electing talented and dedicated candidates to serve as judges and judicial branch leaders. These officials have demonstrated a commitment to a court system which provides fair and equal treatment for all. Courts are dependent upon the public’s trust to successfully carry out their mission. For a segment of our population that trust has been diminished and a perception of unequal treatment exists. Members of the public are more accepting of a system when they see others like themselves who are a part of

it. One way to improve trust and confidence in the court system is for court leaders to provide leadership toward the goal of insuring that the faces of our courts are reflective of the communities they serve. Endnotes 1. The Arkansas Lawyer, Vol. 49, No. 1, Winter 2014. 2. National Center for State Courts, how the public views the state courts: A 1999 National Survey (1999), available at http://www.ncsconline.org/WC/Publications/ Res_AmtPTC_PublicViewCrtsPub.pdf. 3. ABA Perceptions of the U.S. Justice System, reprinted in 62 Alb. L. Rev. 1307 (1999). 4. David B. Rottman, Trust and Confidence in the California Courts: A Survey of the Public and Attorneys, Administrative Office of the Courts (2005). 5. David B. Rottman et al., Perceptions of the Courts in Your Community: The Influence of Experience, Race and Ethnicity (January 31, 2003) (unpublished manuscript) (on file with author). See Table 1.1 at page 4 for an exhaustive list of all the state and national public opinion polls on the courts. 6. Kevin L. Lyles, The Gatekeepers: Federal District Courts in the Political Process, 237 (1997). 7. Race and the Law, A.B.A. Journal, Feb. 1999, at 41-70. See also Sherrily Ifill, Racial Diversity on the Bench: Beyond Role Models and Public Confidence, 57 Wash & Lee L. Rev. 405 (2000). 8. Racial Attitudes in Pulaski County 10th Annual Survey Report, University of Arkansas at Little Rock, March 22, 2013,

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available at ualr.edu/race-ethnicity/research/ racial-attitudes. 9. Chief Justice Jim Hannah, State of the Judiciary Address, delivered June 11, 2010, in Hot Springs, Arkansas, at the Annual Meeting of the Arkansas Bar Association, available at https://courts.arkansas.gov/sites/default/files/ tree/2010 State of the Judiciary Speech.pdf. 10. John Thibaut and Laurens Walker, Procedural Justice: a Psychological Analysis (1975). 11. Roger K. Warren, Public Trust and Procedural Justice, 36 Court Review 12, 13 (2000). 12. Kevin Burke and Steve Leben, Procedural Fairness: A Key Ingredient in Public Satisfaction, American Judges Association, 2007. 13. Tom R. Tyler, Procedural Justice and the Courts, 44 Court Review 26, 30 (2009); Tom R. Tyler, What do they Expect?, California Courts Review (Winter 2006) 22. 14. See Jerry Kang, Implicit bias: A Primer for Courts (National Center for State Courts 2009). 15. Pamela M. Casey et al., Addressing Implicit Bias in the Courts, 49 Court Review 64 (2013). 16. Kimberly Papillon, The Court’s Brain: Neuroscience and Judicial Decision Making in Criminal Sentencing, 49 Court Review 48 (2013). 17. Jeffrey J. Rachlinski et al., Does Unconscious Racial Bias Affect Trial Judges?, 84 Notre Dame L. Rev. 1195, 1225 (2008-09). 18. U.S. Conference of Chief Justices, Resolution 6, adopted at the Midyear Meeting on January 28, 2009. 19. Position Paper on State Courts’ Responsibility to Address Issues of Racial and Ethnic Fairness, Conference of State Court Administrators, December 2001. 20. National Action Plan: A Guide for State and National Organizations, National Center for State Courts (2000). 21. See Equal Employment Opportunity and Diversity Plan, Colorado Supreme Court, February 2002; Theodore J. Fetter, New Jersey’s Program to Build and Develop a Diverse Workforce, National Center for State Courts (2002). 22. Sheryl J. Willest and Antoinette M. Davis, Building a Diverse Court: A Guide to Recruitment and Retention, Washington Supreme Court (2002). ■

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Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

PRACTICE TIP Practicing Before the Arkansas State Claims Commission BY DAVID H. WILLIAMS

The Arkansas State Claims Commission was created by the Arkansas Legislature as a forum for the resolution of claims barred by the harshness of the doctrine of sovereign immunity. The statutory authority for the creation and operation of the Claims Commission is found at Ark. Code Ann. §§ 19-10-201 through 305. Over the years, the Claims Commission’s jurisdiction has been whittled at by the Legislature. What the Legislature has given, the Legislature can take away. But, for purposes of this practice tip, we are going to cover the basics of what to do if the state or any of its actors causes harm or losses. A claim can be filed with the Claims Commission, discovery had, and a hearing held before three or all five of the Claims Commission members. The commission has a good website that contains all the information, relevant statutes, and forms one would need to practice before the commission.1 Commission Director Brenda Wage and her staff are very amenable to answering questions a lawyer might have about the claims process. The commissioners at the time of the writing of this practice tip are Richard Mays and H.T. Moore, Co-Chairs, along with Commissioners Bill Lancaster, Mica Strother and Jimmy Simpson. Mays, Moore and Simpson are all well-known and highly regarded lawyers. Bill Lancaster is probably best known for his newspaper career for the Sheridan Headlight, Pine Bluff Commercial, NW Arkansas Times, and the Arkansas Gazette. The commissioners are appointed by the governor for five-year terms. They are delegated the authority to hear claims by the Legislature. Two of the three hearing commissioners’ votes are needed to approve a claim. There are instructions on the website for filing claims. The name of it is, simply enough, “Instructions for Filing Claims.” Also, there are frequently asked questions and the answers 30

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to the questions on the website. These questions cover the basics. Questions such as: Is there a filing fee? (No). Can you fax a form? (No). How many copies are needed? (Original and five if you want a file-marked copy back). Many claims are filed pro se, thus the frequently asked questions and answers are very elementary and fundamental. The answers to almost any question you have about what to do and when and how to do it are on the commission’s website. This practice tip is geared towards providing you with one lawyer’s experience before the Claims Commission and the differences between it and court. In many ways, Claims Commission practice is similar to civil litigation where there is a bench trial. Therefore, at the Claims Commission level you will be in familiar territory. Thereafter, before the Legislature, if you are successful and obtain an award for your client, you will not. The attorneys who represent the respondent before the Claims Commission will usually be members of the Attorney General’s office. However, some state agencies, such as Department of Human Services, have their own departmental counsel. My experience is that the lawyers who represent state agencies are generally overworked and underpaid. The lawyers’ knowledge and familiarity of tort law might not be as extensive as those you might be familiar with. This is something to take into consideration when you are dealing with the lawyers on the other side. There are certainly very capable lawyers who represent state agencies. Another consideration is the accountability. It’s not the same as in private tort, property or contract litigation. There is no liability insurance. There is no private entity that is going to have to pay an award. There is very limited settlement authority. Any award above $15,000 has to be approved by the Legislature, unless the claim is for death or disability of

specified government employees. Therefore, unless your client’s claim is minimal, you are not going to be “settling” anything. Discovery can be conducted as in civil litigation. Interrogatories and requests for admission and production can be submitted. Depositions can be had. It is a good idea to get as much pre-litigation discovery as possible via the Freedom of Information Act because the Claims Commission procedure is a very much scaled-down version of private litigation, and continuances are hard to come by. You need to be prepared to present your case to the commission within a few months of the filing of your complaint. You want to have as much information about your case as possible prior to filing your complaint. Think of a hearing before the Claims Commission as a scaled-down version of a bench trial, but more like a mediation presentation with a combination of PowerPoint, live testimony, summaries, video testimony, lists and charts. Visual aids are highly recommended. The same presentation you make to the Claims Commission will likely be the one you make to the Claims Subcommittee of the Joint Budget Committee, but in an even more time-limited scenario. This is not a jury trial. There is a limited amount of time for both sides to present their case, usually not more than two to three hours. So, you have to make the most efficient use of your time. Also,

DAVID H. WILLIAMS is a solo practitioner in Little Rock.

your case may be the third or fourth case that the commissioners will hear that day, so be forewarned and plan accordingly. You may be waiting all morning and then be told to come back after lunch. I would highly recommend watching a Claims Commission hearing or two before you go to yours. All materials you intend to present to the commission at the hearing must be submitted pre-hearing. However, again, this is not a jury trial. This is a presentation to a three-member panel of commissioners, two of which will likely be lawyers with trial experience. Be judicious in what you submit. This is not a time to cover the waterfront and produce everything imaginable. Use your imagination in submitting deposition designations and testimony, charts, lists, photos, summaries and time lines. Make it easy on the commission to understand your case. Everything you submit must be pared down to its barest, most essential, most important points. This applies to any legal issues or arguments and arguments in motions for summary judgment, as well. Be brief, to the point, and crystal clear. The commission’s rules and regulations state that it follows the Arkansas Rules of Civil Procedure and Rules of Evidence as closely as possible, but the commissioners can exercise discretion. The rules are liberally construed. So, it is similar in some ways to an administrative hearing. It’s this writer’s opinion that the commissioners’ goal is to be fair and not to blindly adhere to a strict interpretation of the rules. Well-founded objections are well received, but not mandatory to be made. Remember, there is no record that you are appealing. If you prevail and obtain an award, your next stop is the Legislature where the Claims Subcommittee of the Joint Budget Committee will hear your claim and decide whether to recommend approval of funding to the Joint Budget Committee, which will pass the funding bill for approval to both houses of the General Assembly for a vote. At the Legislative level, your claim will be submitted to the Joint Senate and House Subcommittee. You will be given notice of the agenda by staff for the subcommittee as soon as they receive same. However, you need to stay in close contact with the commission staff, as they will have a better handle on when your claim is going to be placed on the agenda. In my case, we received notice only one week before the actual hearing. And, more importantly you will only get 15 minutes to state your case. Yes, 15 minutes. Better have your presentation on speed dial. And, again, you will be but one claim out of several that will be heard that day. But, most

importantly, you have to understand that this is a legislative process; a funding process of the Legislature. The commission will prepare a bill for submission to the General Assembly approving the funding of all claims, yours included, once approved by the Joint Budget Subcommittee and then by the full Joint Budget Committee. The General Assembly has total control over the determination of, and subsequent funding for, payment of the “just debts and obligations of the State.”2 Therefore, and I cannot emphasize this enough, if your claim award is anything substantial, you need to get assistance from someone who knows the legislative process and can guide and direct you through that process. For years, the Legislature would give due deference to the Claims Commission’s findings of fact and conclusions of law and approve claims for payment. The original idea for the commission was born from the fact that the Legislature did not have the time or resources to hear and decide legal claims. Over time, however, the Legislature’s view of its oversight grew to one of budgetary oversight, rather than one of payment of liability as determined by the Claims Commission. If the Legislature’s disapproval of the Claims Commission’s jurisdiction is strong enough, it can simply eliminate jurisdiction. In this writer’s opinion, this is contrary to the stated purpose for which the Claims Commission was created, which is to ameliorate the harshness of sovereign immunity, and “provide for the payment of all just and legal debts of the State.” The method in which the claims were funded has changed over the decades, and now the Legislature is in large part free to fund claims from almost any state department’s budget. Thus, in the recent case of Gyronne Buckley, the Legislature threatened to fund the claim from the state’s budget for deputy prosecutors, which naturally solidified strong opposition from the prosecuting attorneys. In the claim I handled, after the claim was approved, the Legislature voted to remove the Claims Commission’s jurisdiction over such cases. Therefore, if the state decides to release a violent juvenile offender with a history of violence, who has threatened to kill citizens, and does so, there is no longer any remedy before the Claims Commission. The same is true for prison inmates who are wrongfully released. No jurisdiction. This could ultimately prove to be a costly decision by the Legislature as eliminating jurisdiction will leave those harmed by the actions of the state with no recourse but federal civil rights lawsuits, and the concurrent oversight of the state’s actions by the federal government through injunctive relief, some-

thing the Legislature would never knowingly have wanted to incur. Claims Commission practice is not that difficult or complicated once you have done one. The director and her staff are very good about answering questions. The commission’s website has a wealth of information. You’re not going to be in the dark about what to do. And, there is no set way for presenting evidence at the hearing itself. Just put your best case forward as succinctly and with as much impact as possible. The hard part comes afterwards; if you are successful in obtaining an award for your client, then getting your claim approved for payment by the Legislature is a whole different ballgame. There, you are going to need help. Getting a bill passed at the Legislature is a political and budgetary matter, not a legal matter. So, get help. Endnotes: 1. http://claimscommission.ar.gov/. 2. See, Fireman’s Insurance Co. v. Arkansas State Claims Commission, 301 Ark. 451, 784 S.W.2d 771 (1990), and Hanley v. Arkansas State Claims Commission, 333 Ark. 159, 970 S.W.2d 198 (1998). 

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

ARKBAR GOVERNANCE REPORT ARKBAR’S Board of Governor’s Meeting

BY KAREN K. HUTCHINS

Board of Governors Chair Anthony A. Hilliard presided over the August meeting held in Rogers, Arkansas. He introduced the new members to the Board including Arkansas Bar Foundation President Charles D. Roscopf and three newly-elected governors, Kristin Pawlik, Don Elliott and Tom Carpenter. Members re-elected for a second term include Francis Fendler, Wade Naramore and Laura Partlow. Leslie Ligon was appointed to a three-year at large position and Leon Jones, Jr. was reappointed to serve as Parliamentarian. Executive Director Karen Hutchins briefed the Board on two new member benefits: ArkBar Docs and SoFi. ArkBar Docs is a library of over 180 legal documents compiled, endorsed and copyrighted by the Association that have been automated using HotDocs. ArkBar Docs retains client information to make future documents easier and more efficient. The SoFi company offers student loan repayment programs. President Brian Ratcliff updated the Board on the work of the Task Force on Professional Liability Insurance and Past

President Simpson provided a report on the work of the Administrative License Suspension Task Force. President-Elect Eddie H. Walker provided the Board with an overview of two Association sponsored events: the September 11th Wills for Heroes Legal Clinic and Blood Drive and the Law School for Teachers. Both events provided an opportunity for our members to reach out and give back to the community. The Board approved changes to the Association’s Investment Policy proposed by Committee Chair Tom Womack. Aaron Squyers, Chair of the Governance Committee, made several recommendations to the Board including a recommendation that the Association remain unincorporated. The Board supported the Committee’s proposed antitrust policy and recommended that it be presented to the House of Delegates for consideration of adoption. YLS Chair Jessica Yarborough reported on several YLS projects underway for the year. These include efforts to assist voters to register for the upcoming elections, cre-

ation of a Law School Application Guide, work on an anti-bullying campaign, and a workshop on Legal Procedures for Small Businesses. President Ratcliff reminded all that the Mid-Year meeting is returning to Little Rock. Events at the Old State House include oral arguments by the Arkansas Supreme Court for the first time since 1913, and a special lecture on Arkansas history with a dramatic presentation. All are invited to an afternoon reception on Wednesday afternoon at the William J. Clinton Presidential Center. We have two full tracks of CLE on Thursday and Friday. The House of Delegates meeting will take place Friday afternoon at the Double Tree Hotel. 

KAREN K. HUTCHINS, J.D., CAE, is the Executive Director of the Arkansas Bar Association.

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Report from the 2014 National Conference of Commissioners on Uniform State Laws

BY LYNN FOSTER The Uniform Law Commission (“ULC”) held its 123rd Annual National Conference in Seattle from July 11 through July 17, 2014. Representing Arkansas were Lynn Foster, Elisa White, Carolyn Witherspoon and Vince Henderson, who serves as an associate commissioner. Arkansas is the first and only state with all-female voting commissioners. The Conference approved four new acts, summarized below. The Uniform Fiduciary Access to Digital Assets Act (UFADAA)1 is a badly needed new law. Many assets are not tangible, but digital. On average, an American consumer’s digital assets are valued at $55,000. However, when an individual becomes incapacitated or dies, if he or she has not had the foresight to hand over user names and passwords to a fiduciary, often the fiduciary cannot get access to digital assets. UFADAA solves the problem using the concept of “medium neutrality.” If a fiduciary would have access to a tangible asset, that fiduciary will also have access to a similar type of digital asset. UFADAA governs personal representatives; guardians of the estate; agents under a power of attorney; and trustees. UFADAA defers to an account holder’s privacy choices as expressed in a document such as a will, or online by an affirmative act separate from the general terms-of-service agreement. Therefore, an account holder’s desire to keep certain assets private will be honored under UFADAA. A committee of the Arkansas Bar Association Probate Section is currently studying UFADAA for possible enactment in Arkansas. The Uniform Recognition of Substitute Decision-Making Documents Act promotes the portability and usefulness of substitute decision-making documents for property, health care, and personal care, such as financial powers of attorney and advance directives, without regard to whether the documents are created within or outside of the 34

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jurisdiction where a substitute decision is needed. The Probate Section committee is also studying this uniform law for possible enactment. Amendments to the Uniform Voidable Transactions Act (formerly the Uniform Fraudulent Transfer Act) were approved. The amendments address a small number of narrowly-defined issues, and are not a comprehensive revision. Amendments include a new Section 10, which sets forth a choice of law rule for claims of the nature governed by the Act, as well as the addition of uniform rules allocating the burden of proof and defining the standard of proof with respect to claims and defenses under the Act. Arkansas has enacted the Uniform Fraudulent Transfer Act.2 Amendments to Section 3-116 of the Uniform Common Interest Ownership Act were also approved. The amendments concern the six-month “limited priority” lien for unpaid common expense assessments owed to community associations. Arkansas has not enacted the Uniform Common Interest Ownership Act. In the ULC “pipeline” and debated at the annual meeting were the following acts. The Uniform Home Foreclosure Procedures Act is intended for adoption by both states with nonjudicial foreclosures and states without. The act provides “wraparound” procedures that address the right to cure, notice of default and sales, facilitation or mediation, who has the right to foreclose, transfers of instruments and rights, lost note affidavits, expedited sales of abandoned property, and prevention of servicer abuses. The Revised Uniform Residential Landlord and Tenant Act is a comprehensive revision of the 40+-year-old Residential Landlord and Tenant Act, which was influential in beginning a new era in landlordtenant law. The Act is slated for ULC vote in 2015. The Model Act on Commercial Real

Estate Receiverships Act authorizes the appointment of real estate receivers and sets forth the powers of real estate receivers. The act provides powers for a receiver to act with respect to personal property that is ancillary to real estate, but does not authorize the appointment of receivers with respect to owner-occupied residences. The Amendments to the Uniform Athlete Agents Act seek to bring UAAA, which was adopted in 2000 and enacted in 43 states, including Arkansas,3 up to date. Recently there have been substantial changes in the marketplace for athletic agents, and a number of states have considered non-uniform amendments to the act, particularly in response to allegations in the past two years of improper conduct by agents with regard to college athletes. The Uniform Family Law Arbitration Act is a free-standing act that addresses family law arbitration in full, rather than a set of amendments to an existing arbitration act or a partial act with references that incorporate other arbitration law in the state. The Recognition and Enforcement of Canadian Domestic Violence Protection Orders Act provides for recognition and enforcement of Canadian domestic-violence protection orders in the United States. The Uniform Series of Unincorporated Business Entities Act, among other things,

LYNN FOSTER is the Arkansas Bar Foundation Professor of Law at the UALR Bowen School of Law, and has served as one of Arkansas’ uniform law commissioners since 2009.

establishes a new type of liability shield in a “protected series”—an identifiable set of assets segregated within an unincorporated entity. Rather than protecting the owners of an enterprise from vicarious liability for the enterprise’s debts, the “internal shields” of a protected series protect the assets of one protected series from the creditors of the overarching entity and any other protected series of that entity. The Uniform Trust Decanting Act regulates trust decanting, a nonjudicial method for modifying an irrevocable trust. If you are interested in following any of the

acts still in committee, you can sign up for all committee submissions and reports at www. uniformlaws.org. The Arkansas uniform law commissioners are happy to assist with any questions you may have about uniform laws. Endnotes: 1. The latest versions of all of these final and proposed acts are available at www.uniformlaws.org. 2. Ark. Code Ann. §§ 4-59-201 through 212. 3. Ark. Code Ann. §§ 17-16-101 through 119. 

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ARKANSAS SUPREME COURT HISTORICAL SOCIETY

Justice Christopher Columbus Scott

Justice C.C. Scott Courtesy of Arkansas Supreme Court Historical Society and Arkansas Secretary of State’s Office

BY J.W. LOONEY When Williamson S. Oldham resigned his seat on the Arkansas Supreme Court in 1848 to run for Congress (he was defeated), the governor appointed C. C. Scott, of Camden, judge of the 8th Judicial Circuit, to fill the vacancy. Scott was then elected by the legislature to complete the term and was subsequently re-elected twice. He served until his death from pneumonia on January 19, 1859. Justice Scott was born in Halifax County, Virginia, April 27, 1807, and was an orphan at an early age. Scott’s father was John Baytop Scott, a prominent lawyer and friend of Washington, Jefferson, Madison and Monroe. He was a Revolutionary War soldier and, later, civil and military governor of the district of Cape Girardeau, Missouri, then a part of Louisiana. Scott was raised by a brother and initially schooled at home. After the death of his brother’s wife, he attended school. Recalling his early education he mentioned a public school he attended with sons of the wealthy class where he said he “learned next to nothing.” He praised the education he received in a regular school with children of “mechanicks and the middle and lower class of Planters and farmers.” He and a cousin carried guns on their walk to school, and he developed a lifelong interest in hunting. For a time in 1820 he tired of school and asked his brother to allow him to work on the farm with the slaves. He apparently learned the value of hard work and to complete jobs once started but willingly resumed his education afterwards. He attended Washington College (now Washington and Lee) in Virginia, graduating in 1827 with highest honors. He moved with his brother to Gainesville, Alabama, and studied law in the office of a local attorney. He also engaged in the mercantile business, apparently unsuccessfully. He returned to Virginia to study at Staunton Law School, completing his studies in 1832. He moved back to Gainesville, Alabama, and practiced law there until 1844 when he moved to Arkansas, apparently following a conflict in which he was charged with killing a man who had threat36

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ened him. He was either acquitted by a jury or pardoned by the governor (accounts vary on this point) and resumed his law practice but felt it better to leave Alabama. He arrived in Camden in 1844 as the first lawyer there and was immediately accepted. He became circuit judge in 1846, serving until his appointment to the upper court in 1848. His 10 plus years on the court was the longest tenure of any justice in the antebellum period. Justice Scott was sometimes accused of disregarding precedent and having a “metaphysical train of thought” in his opinions. One of the best known is Rose v. Rose,1 the first divorce case to reach the Arkansas Supreme Court. There Justice Scott approved the concept of “general indignities” as grounds for divorce. He indicated that legal cruelty, as previously conceived, was not necessary. He said: And so it may be safely assumed of those personal indignities mentioned by the statute, which necessarily include rudeness, vulgarity, unmerited reproach, haughtiness, contempt, contumely, studied neglect, intentional incivility, injury, manifest disdain, abusive language, malignant ridicule, and every other plain manifestation of settled hate, alienation and estrangement, both of word and action, that they must be no less habitual, continuous, and permanent, to create that intolerable condition contemplated by the statute, and for which it provides relief.2 In 1857 he authored a second well-known opinion3 approving contingency fee arrangements in which he cited an English jurist to effect: [I]t is not easy to conceive that mischief can arise from opening the courts of justice to all suitors; or, from contracts by which the fruits of the suit may be divided between him who has the right of action, and him who has contributed advice,

expense or exertion to institute the suit, or prosecute it to effect.4 The case was a land title dispute in which attorney Absalom Fowler was accused of “champerty,” the common law prohibition against lawyers acquiring an interest in lands which were the subject of litigation from their client as a part of the fee arrangement. The court concluded that this was no longer an accepted restriction in such cases. In 1832, Scott married Elizabeth Strother Smith, the daughter of a Virginia judge, and they had five children. Their home west of Camden, known as “Rosedale,” stands today as a beautifully preserved antebellum structure. One son, also known as C. C. Scott, studied law with Camden’s well-known Civil War Era diarist, John W. Brown. This son, along with his brother, Francis, served in the Confederate Army. Young Scott was named the “Hero of the Hatchie” for his bravery during the Battle of Hatchie Bridge in Tennessee. Endnotes: 1. 9 Ark. 507 (1849). 2. Id. at 516. 3. Lytle, et al (Cloyes’ Heirs) v. State, 17 Ark. 608 (1857). 4. Id. at 678-79. Further Reading: John Hallum, Biographical and Pictorial History of Arkansas (1887) pp. 296-300. Christopher C. Scott Collection, Arkansas History Commission. Judge J.W. Looney is a Circuit Judge, 18-W Judicial Circuit and Distinguished Professor, Emeritus, University of Arkansas School of Law. This article is provided by the Arkansas Supreme Court Historical Society, Inc. For more information on the Society contact Rod Miller, Arkansas Supreme Court Historical Society: 501-682-6879, rod.miller@arkansas.gov.

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TAYLORLAwfiRm.cOm Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

At the Barricade (on Markham): The Brooks-Baxter War Here upon these stones We will build our barricade In the heart of the city We claim as our own! —At the Barricade, Les Miserables

BY CLIFF AND KAREN MCKINNEY In 1874, during the twilight of Reconstruction, a barricade rose in the heart of Little Rock, along Markham & Main, separating two armed camps of militia both claiming the governor’s office as its own. By erecting the barricade, U.S. Army troops tried unsuccessfully to prevent bloodshed as both sides of an intra-political party squabble resorted to violence. Dozens died in the month-long conflict that ensued, which marked the last bloody change of power in Arkansas history. In addition to the literal barricade on Markham & Main, the conflict witnessed a naval battle, a hostile takeover of the City of Baring Cross (now a neighborhood of North Little Rock) and the kidnapping of two supreme court justices by men attempting to keep their favorite governor in office. The Brooks-Baxter War took place during the Reconstruction period in Arkansas, yet it was not a clearly defined conflict. Both sides counted carpetbaggers (Northerners who relocated to the South), scalawags (Southerners who supported the North), freedmen and ex-Confederates among their ranks. At least on paper, both sides were members of the same Arkansas Republican Party, though all conventional associations and alliances broke down. The Players The chief players in the drama were: Powell Clayton, the unpopular governor preceding the election of 1872. Joseph Brooks, the Methodist minister, abolitionist and Union Army chaplain who served the African-American Third Arkansas Infantry during the Civil War; a Carpetbagger and a Brindletail. Elisha Baxter, the Batesville lawyer forced from his home during the Civil War due to his anti-secession views who later served in the Union Army and the Arkansas 38

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wartime government during the Northern occupation; a Scalawag and a Minstrel. Thomas Rose, the U.S. Army Colonel in command of the Little Rock Arsenal charged with keeping the peace between the factions. Ulysses Grant, the President of the United States called on to end the dispute. The Scene Is Set The Arkansas Republican Party, shortly after creating a new constitution and gaining the governorship in 1868, split into two factions: the “Brindletails” and the “Minstrels.” The Minstrels (mostly carpetbaggers) aligned with the mainstream national Republican Party. The Brindletails (mostly scalawags) aligned with the liberal faction of the national Republican Party, which supported the “liberal” position of reenfranchising ex-Confederates. Powell Clayton, a Union brigadier general who settled in Arkansas after marrying a woman from Helena, was Governor during this period. His administration was marked by great strides, including starting the first free public school system, laying the foundations for the University of Arkansas and suppressing the activities of the Ku Klux Klan. However, his administration was marred by serious accusations of corruption, the implementation of martial law and periods of general lawlessness throughout the state. Further complicating matters, Governor Clayton viewed fellow party member, Joseph Brooks, as a threat to his own political power and did not award him a position within the new government, creating fractures within the Republican Party. Eventually, the Republican legislature grew tired of Governor Clayton and attempted to force him out of office, first by unsuccessfully impeaching him. Failing that, in 1871, the legislature tried to force him out of state by

electing Governor Clayton against his will to the United States Senate (this was before the direct election of senators). He eventually accepted the senate position on the condition that his supporter, Ozro Hadley, became acting governor. This set the stage for the highly contentious election of 1872. As a harbinger of the confusion to come, the scalawag-backed Brindletail faction nominated Brooks (a carpetbagger) on what amounted to an anti-Clayton platform. Meanwhile, the carpetbagger-backed Minstrels faction nominated Baxter (a scalawag) on what amounted to a platform of continuing Clayton’s policies. Though the Brindletail faction had more popular appeal within the state, the Minstrels were entrenched and controlled the state’s election mechanisms. Unsurprisingly, when the results of the election were announced as 41,681 for Baxter and 38,415 for Brooks, many people alleged fraud. Act 1: The Legal War Brooks first pursued legal means of getting the election overturned, appealing to the General Assembly as the constitution at the time required. The Minstrels, however, controlled both chambers of the legislature so, not surprisingly, Brooks found no relief. The Arkansas attorney general took the case to the Supreme Court of Arkansas for its opinion. In the case of Attorney General on the Relation of Brooks v. Baxter,1 the Supreme Court refused to take any action in the case, stating, “Had the court the power, by quo warranto, to seat or unseat the governor, to seat or unseat the members of the general assembly, simply by ruling that they had not been elected in strict conformity to law, does it not destroy all equality of independence, of power and of dignity?”

Brooks’ efforts might have died out except that Baxter began making decisions that angered his supporters. Most notably, Baxter withdrew support from a plan to provide state aid to railroads and began courting support from members of the Democratic Party. Baxter’s actions resulted in significant loss of support among his own faction. Some of Baxter’s former supporters became allies of Brooks, and the fracture in the Baxter camp emboldened Brooks. Brooks filed a new suit in Pulaski County Circuit Court seeking a declaration that Baxter was a usurper in office, enjoining Baxter from exercising the powers of governor and awarding Brooks back-pay for the time Baxter held the office. On April 15, 1874, Judge John Whytock ruled in favor of Brooks. Brooks and his forces, including the Pulaski County sheriff, marched across Markham from the courthouse to the Statehouse within minutes after receiving Judge Whytock’s order. They found Baxter alone with his young son in his office at the Statehouse. Brooks’ forces seized Baxter and physically threw him from the Statehouse into Markham, marking the end of the first act and the beginning of the violence. Act 2: The Shooting War By April 16, 1874, Baxter and 200 armed men took up arms at the Anthony House hotel three blocks down the street from the Statehouse at the southwest corner of Markham and Scott. Brooks quickly turned the Statehouse into an armed fortification, using furniture to create a barricade and breaking into the state armory to secure weapons, including two cannons that were aimed at the Anthony House. Both camps issued proclamations and decrees summoning militia to their side. Gunfire was haphazardly exchanged downtown between random groups of supporters. Strangely enough, both sides were led militarily by ex-Confederate soldiers. Freedmen fought on both sides, though more supported Brooks. By April 20, 1874, both sides had mustered more than 1,000 troops. Word reached Colonel Rose at the Little Rock Arsenal that Baxter troops were preparing to storm the Statehouse. Colonel Rose moved federal troops into position between the two forces and erected a barricade along Markham with orders to fire on any side breaching the peace. The fighting then moved outside of Little Rock when Baxter commander King White took control of Pine Bluff and began intercepting Brooks’ forces trying to move into

Little Rock. Battles were fought at New Gascony, Arkansas Post and other locations. Brooks’ forces seized Fayetteville’s arsenal at the University of Arkansas and attempted to ship the weapons down the Arkansas River resulting in a naval battle known as the Battle of Palarm Creek. On May 7, 1874, Baxter troops seized the steamboat Hallie in Little Rock, converted it to a gun ship and sailed to intercept Brooks’ Photo courtesy of the Little Rock Convention and barge. Brooks’ forces on the shore Visitors Bureau near Natural Steps ambushed the Hallie and eventually captured it from Baxter’s forces with both sides incurring Exeunt: The Armistice and Aftermath Word of the conflict reached Washington, significant casualties. D.C., with delegations from both sides seekBaxter’s forces learned of a large Civil War ing support from President Grant. Famed cannon that had been buried in Little Rock. attorneys Uriah Rose and Albert Pike repThey located and repaired the cannon, dubbed resented Baxter while Arkansas’ Senators, it The Lady Baxter, and used it to menClayton and Stephen Dorsey, representace Brooks’ forces and interdict river traffic. ed Brooks. President Grant charged U.S. Brooks’ men crossed the Arkansas River and captured a railroad facility in Baring Cross, Attorney General George Williams to hear only to be surrounded by Baxter combatants. both sides and decide the case. Attorney Serious fighting ensued before the federal General Williams conducted a hearing on May 9, 1874, and issued an opinion on troops arrived and dispersed both sides. One of the more serious incidents of the May 15, 1874, declaring Baxter the true war occurred on May 4, 1874. Afraid that the governor, though politics may have played Arkansas Supreme Court might issue a ruling more of a role in the decision than legalities. in favor of Brooks, Baxter’s forces stormed a Immediately after the opinion was issued, train in North Little Rock containing three President Grant issued orders to provide of the justices and attempted to kidnap military support to Baxter. Upon hearing them. Justice Marshal Stephenson managed the news, Brooks forces retreated, and Baxter to evade the kidnappers, but Justices John reentered the Statehouse on May 19, 1874, Bennett and Elhanan Searle were captured. marking the end of the war. Though no offiThe kidnapped justices were initially held cial tally exists, casualty estimates from the at St. John’s College in Little Rock then war are in the range of 200. Though there was talk of reprisals, the hidden in a ravine before being transferred to a hotel in Benton. However, their jailor, Arkansas Supreme Court was the primary T.A. Summerhill, became frightened when group to suffer. Before the end of May, the he learned that Colonel Rose had dispatched Baxter-backed legislature impeached all of soldiers to find and rescue the justices. On the the justices who supported Brooks. In Baxter 2 pretext of transferring the justices to another v. Brooks, the new Supreme Court tossed the prison, Summerhill arranged for their escape writ backing Brooks and reversed the Pulaski and both were back in Little Rock by May 6, County decision. In October, a new constitutional convention 1874. On May 7, 1874, the Supreme Court was called resulting in the current Arkansas issued a new writ backing Brooks’ claim. Constitution of 1874. Baxter abandoned the CLIFF MCKINNEY is a Managing Member of Quattlebaum, Grooms & Tull PLLC. KAREN MCKINNEY holds a B.A. and M.A. in History from Baylor University. They have been married since 2001 and have two children, Katie and Megan. Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

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Republican Party and spearheaded the return of Democrats to power in Arkansas, including the re-enfranchisement of ex-Confederates originally championed by Brooks. As part of the new constitution, Baxter agreed to convert his four-year term as governor to a two-year term and be replaced by a new governor, Augustus Garland. Baxter left office on November 12, 1874, less than six months after winning the war. Four years later he unsuccessfully sought the Democratic nomination for the United States Senate then decided to retire from politics. Baxter returned home to Batesville to practice law. He died of illness on May 31, 1899. Today, his memory lives on in the naming of Baxter County. Despite ruling against him in the war, President Grant appointed Brooks as postmaster of Little Rock shortly after the conflict settled. Brooks remained active in politics and considered another run for governor, but he became ill in 1876. He died on April 30, 1877, in Little Rock. This year marks the 140th Anniversary of this bloody chapter in Arkansas history, but one of the only physical reminders of the conflict is The Lady Baxter cannon that now graces the Old Statehouse lawn. Wielded in anger, a tool of political violence, today the cannon faces boldly toward the place where a barricade once stood, where a governor was literally thrown from office, where men raised banners and lives were lost. Today, the cannon is little thought of by anyone except children playing on her and occasional tourists posing for photos against a backdrop of a nearly forgotten war…a nearly forgotten part of our past. Endnotes: 1. 28 Ark. 129 (1873). 2. 29 Ark. 173 (1874). Sources: The Encyclopedia of Arkansas History and Culture (various articles). Jimmy Hefley, The Brooks-Baxter War, The Arkansas Historical Quarterly, Vol. 14, No. 2 (Summer 1955). John Mortimer Harrell, The Brooks Baxter War: A History of the Reconstruction Period in Arkansas (1893). Logan Scott Stafford, Judicial Coup D’etat: Mandamus, Quo Warranto and the Original Jurisdiction of the Supreme Court of Arkansas, 20 U. Ark. Little Rock L.J. 891 (1998). Robert W. Meriwether, The Brooks-Baxter War and the Battle at Palarm, Faulkner Facts and Fiddlings Vol. XXXVII, Nos. 3-4. 

Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

DISCIPLINARY ACTIONS Judicial Discipline & Disability Commission Actions

Attorney Disciplinary Actions

On August 6, 2014, the Arkansas Judicial Discipline and Disability Commission announced sanctions against Judge Michael A. Maggio in case #14-136 with a Letter of Suspension and Removal of Office.

Final actions from July 1 - September 30, 2014, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available on-line either at http://courts.arkansas.gov and by entering the attorney’s name in the attorney locater feature under the “Directories” link on the home page, or also on the Judiciary home page by checking under “Opinions and Disciplinary Decisions.” [The “Model” Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]

On September 11, 2014, the Arkansas Supreme Court issued a Per Curiam ordering Judge Michael A. Maggio removed from judicial office and the immediate issue of the mandate. On September 19, 2014, the Arkansas Judicial Discipline and Disability Commission announced that an agreed Letter of Informal Adjustment was issued to the Pope County District Court Judge Don Bourne, in Commission case #14-152.

SUSPENSION:

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REPRIMAND:

JOHN SKYLAR “SKY” TAPP, Bar No. 76123, of Hot Springs, Arkansas, had his law license suspended for ninety (90) days, was fined $10,000, and ordered to pay $753.50 costs by the Committee after a hearing, a decision affirmed by the Arkansas Supreme

Copies of the press releases can be found online at http://www.state.ar.us/jddc/ decisions.html.

John Dewey Watson

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Court in Case No. 13-1055 in an opinion issued September 18, 2014, at 2014 Ark. 374. Based on a complaint by Nita Bargen of Hot Springs, the Committee found Tapp violated AR Rules 1.7(a) and 1.9(a) (both on conflict of interest) and 8.4(a) (violating the Rules), (c) (conduct involving deceit or misrepresentation), and (d) (conduct prejudicial to the administration of justice). Tapp briefly represented Bargen (the mother) as a paying client in a child custody matter in 2006 and he represented the father against Bargen in the same matter and case in early 2012. On motion by Bargen, the trial court disqualified Tapp in 2012 from representing the father. On appeal, Tapp argued the sanction was excessive. The Committee and the Court stated that Tapp’s disciplinary history supported the sanction of suspension.

John E. Jennings

MAX M. HORNER, JR., Bar No. 2001067, of Little Rock, Arkansas, in Committee Case No. CPC 2014-013, by Findings and Order filed August 27, 2014, on a complaint based on an appellate opinion, was reprimanded

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DISCIPLINARY ACTIONS for violations of AR Rules 1.1, 1.7(a), and 8.4(d). In 2005 Horner jointly represented spouses Marcus and Cynthia Rackley, on a joint fee, on multiple felony charges arising out of alleged sexual misconduct by Mr. Rackley with his step-daughter T. W., between 2002 and 2004. T. W. was the daughter of Cynthia Rackley. Marcus was tried to a Faulkner County jury in June 2005, resulting in verdicts of guilty on all counts and a 37-year prison sentence. Marcus went to prison on June 27, 2005, and was still there as of January 31, 2014, according to the ADC Inmate Locator. The felony charge against Cynthia was later reduced to a misdemeanor, she was convicted of second degree endangering the welfare of a minor, and she received a suspended sentence. Marcus’ convictions were affirmed on direct appeal in 2007, where he was represented by different counsel. Marcus raised an ineffective assistance of counsel claim based on Horner’s conflict-of-interest in the joint representation at trial. The court held Marcus failed to preserve his conflictof-interest claim at the trial court level and rejected it on direct appeal. Marcus filed

a petition for post-conviction relief, which resulted in a reversal and remand to the trial court in December 2010 for an evidentiary hearing. See Rackley v. State, 2010 Ark. 469. In a pro se appeal, on January 30, 2014, Mr. Rackley received a reversal and remand for a new trial, based on Horner’s conflict-ofinterest in jointly representing both Rackleys at the same time at his 2005 trial, for the reasons stated in the opinion. GARY R. SAMMONS, Bar No. 90091, of Hot Springs, Arkansas, in Committee Case No. CPC 2014-001, by Findings and Order filed September 18, 2014, after a hearing was reprimanded and fined $5,000 on a complaint by Judge Marcia Hearnsberger for violations of AR Rules 1.16(a), 1.16(d), 3.4(c), and 8.4(d). Sammons’ time to file for an appeal to the Supreme Court expired October 18. On June 28, 2013, Sammons filed an Answer for Crystal Stevens, contesting a change of custody. By notice dated July 24, 2013, the court set a temporary hearing on August 14, 2013, at 1:15 p.m. Eleven minutes before the hearing, Sammons filed a motion to withdraw, stating he had not been

fully retained, had been paid nothing, and had expended 3.5 hours, billed at $525.00, on the case. The temporary hearing was conducted with Sammons in attendance, but he declined to provide any legal support for his client. In a letter opinion of August 29, 2013, followed by an Order, the trial court found in favor of Mr. Stevens and granted a temporary change of custody to him. On September 23, 2013, counsel for Mr. Stevens filed a Motion to Compel, served on Sammons, raising the issue of Interrogatories to Ms. Stevens served on Sammons on July 24, 2013, to which responses had not been made. Sammons filed a Response to Motion to Compel. On October 3, 2013, Sammons filed a Motion for Reconsideration, asking the trial court to reconsider its earlier decision to not allow Sammons to withdraw from Ms. Stevens’ case. By Order filed October 7, 2013, the court granted Sammons’ motion to withdraw. CAUTION: CATHERINE PALMER DEAN, Bar No. 96034, of Osceola, Arkansas, in Committee

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DISCIPLINARY ACTIONS Case No. CPC 2013-061, by Findings and Order filed August 4, 2014, was cautioned and fined $750.00 for violations of Arkansas Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), 3.2, and 8.4(d) on a complaint by James Hollis. In 2010, Dean was hired by Hollis to obtain guardianship of a mentally ill sister. Dean’s fee for the case was $700.00. Dean filed a Petition for Ex Parte Emergency Appointment of Guardian of the Person and Estate. The emergency appointment was entered giving a sister temporary guardianship, with a hearing scheduled for November 9, 2010. Two extensions of the hearing were obtained. No action was taken by Dean for several months, so the temporary guardianship expired. After repeated attempted contacts by Hollis and his sister, in April 2011 Dean filed a second Petition for Ex Parte Emergency Appointment of Guardian of the Person and Estate. A second temporary guardianship was entered. A hearing was set for April 15, 2011. Again, Dean took no action on the matter after the April 2011, filing. Hollis and his sister again unsuccessfully tried contacting Dean. They learned that Dean had, without notice to them, closed her private law practice and taken a public sector job.

From the ordinary to the most complex, no appeal is too small or large Writing Briefs to the Arkansas Court of Appeals, the Arkansas Supreme Court, the Federal Circuits and the United States Supreme Court

JOSH Q. HURST, Bar No. 2004016, of Hot Springs, Arkansas, in Committee Case No. CPC 2012-054, by Consent Findings and Order filed August 15, 2014, on a complaint by Donna “Tina” House, was cautioned for violations of AR Rules 1.5(c), 1.7(a)(2), and 1.16(d). House was a passenger in a vehicle driven by Frank Staggs, her former spouse, which was involved in a motor vehicle accident in Hot Springs on January 5, 2007, in which House suffered injuries and the other driver died. Staggs set up an appointment and House and Staggs met with Josh Hurst in January 2007. To her knowledge, House did not have a written fee agreement with the Hurst law firm, but Hurst told her his fee would be a percentage of any recovery. During the meeting, House sign a medical authorization form so Hurst could obtain House’s medical records. House thereafter assumed Hurst was her attorney for the 2007 accident matter. She was not informed that Hurst might also represent Staggs in the same matter as her claim. On September 2, 2008, House was able to meet with Hurst and he told her he acted to ensure that she continued receiving medical care. After her calls were not returned by Hurst,

on September 12, 2008, House chose Little Rock attorney Greg Kitterman to represent her in the matter. On the same date House faxed a letter to Hurst informing him she had employed Kitterman and stating she would be by the Hurst office to pick up a copy of her file on September 15. When House appeared at the Hurst office to get her file, she was provided with a document stating Hurst was asserting a 30 percent attorney’s fee lien in her matter. House was asked to sign the document in order to get a copy of her file; she refused, and she got no file. House heard that a lawsuit had been filed in Garland County Circuit Court on her behalf. At the courthouse, House discovered that a lawsuit, naming Staggs and House as plaintiffs, had been filed by Josh Hurst on September 19, 2008, seven days after House discharged Hurst. After discharging him on September 12, 2008, House never assented to a lawsuit being filed by Hurst on her behalf. At no point from the beginning of the representation to September 12, 2008, did House, the passenger, agree to be represented by Hurst while Staggs, the driver, was also represented by Josh Hurst in the same underlying matter, and filed as part of her claim or court case.

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DISCIPLINARY ACTIONS House may have had legal claims to assert against Staggs as the driver of the vehicle in which she was a passenger. House’s new attorney, Kitterman, wrote and faxed a letter dated October 14, 2008, to Hurst requesting certain information about Hurst’s actions concerning the lawsuit filed in Garland County Circuit Court. Kitterman stated in his letter that he had called Mr. Hurst’s office several times but had received no returned telephone calls. No response was received to the October 14, 2008, letter. Kitterman wrote a letter dated January 29, 2009, to Hurst again requesting certain information, specifically a complete copy of House’s file, including medical bills and records, any documentation associated with the lawsuit filed, and documentation of any offers that had been made on House’s behalf. No response was received. Kitterman also wrote Mr. Hurst letters dated June 19, 24, and July 1, 2009, asking Hurst for a copy of the House file, as Kitterman was in the final stages of negotiating a settlement for her and wanted to be sure he had not missed any bills that might appear in the Hurst file. Kitterman finally got a copy of the file from Hurst in July 2009. In late July 2009, Kitterman settled House’s claim with Farm Bureau for $75,000. No fee was paid from her settlement to Hurst. DAVID M. LITTLEJOHN, Bar No. 2008038, of Little Rock, Arkansas, in Committee Case No. CPC 2013-025, by Consent Findings and Order filed August 4, 2014, on a complaint by Judge Herbert Wright, Jr. and others, agreed to a caution for violations of AR Rules 3.4(c), 5.5(a), and 8.4(d). Littlejohn was licensed in Arkansas in April 2008, and failed to complete the Professional Practicum requirement in 2008 or 2009, resulting in the suspension of his Arkansas law license on April 5, 2010. Mr. Littlejohn completed the Professional Practicum on November 12, 2010, and his license was reinstated from that suspension on November 16, 2010. At the time, the deadline for payment of the annual Supreme Court mandated renewal fee for Arkansas law licenses was March 1. Any license fee not timely paid resulted in automatic administrative suspension of the license on March 2, continuing until the license fee plus penalty fee is paid to the Clerk. Rule VII, Arkansas Supreme Court Rules Governing Admission to the Bar. Mr. Littlejohn was

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delinquent in paying his annual license renewal fee and his Arkansas law license was therefore suspended as follows: March 2 to November 16, 2010, March 2 to July 28, 2011, March 2 to May 31, 2012, and March 2 to March 8, 2013. Littlejohn was noncompliant in his CLE annual requirements and his

Arkansas law license was therefore suspended from November 22, 2011, to March 28, 2013. His Arkansas law license was suspended for noncompliance with the Professional Practicum rule, nonpayment of his annual license renewal fee, or CLE noncompliance or two of the three as follows: March 2 to

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November 16, 2010, March 2 to July 28, 2011, and November 22, 2011 to March 28, 2013. During periods when his Arkansas law license was in suspended status, Mr. Littlejohn practiced law in several cases in Saline County and Pulaski County Circuit Courts. In Pulaski County Circuit Court Case No. 60cr-12-263, State v. Brian Sims, a First Degree Murder case, in March 2013. Littlejohn was associated by lead retained

counsel Horn in early March 2013 to assist in the Sims trial, set to start March 27, 2013. Horn went to the Supreme Court Clerk’s office on March 8, 2013, and paid the $300 required to remove Littlejohn’s suspension for nonpayment of his 2013 annual license renewal fee. Littlejohn participated in the trial of the Sims case during the State’s case in chief. Information was presented on the second day of trial that Littlejohn’s

law license was still in suspended status. A mistrial was declared and the case is reset for trial in June 2013. On March 28, 2013, Horn and Littlejohn went to the Office of Professional Programs where Horn paid the $250 fee required to complete the reinstatement of Littlejohn from his CLE suspension that commenced on November 22, 2011. JIMMY DON OVERTON, Bar No. 2007029, of Little Rock, Arkansas, in Committee Case No. CPC 2014-011, by Consent Findings and Order filed September 19, 2014, on a complaint by Dr. Hussain Al-Rizzo, agreed to a caution for violation of AR Rules 1.3, 1.4(a)(3), and 1.4(a)(4). In June 2008, Dr. Al-Rizzo, a university professor, contracted with Mr. Coney of Little Rock for the construction of a home in Little Rock for about $320,000. Al-Rizzo took possession of the new house in February 2009. Problems between Coney and Al-Rizzo arose, and in August 2009, Coney sued Al-Rizzo in Pulaski County District Court for $5,000 allegedly unpaid by Al-Rizzo on the construction contract. Al-Rizzo employed Overton for representation on a one-third of any recovery contingency fee arrangement. Overton filed a counterclaim for $119,620 against Coney for alleged construction defects and damages, and the case was transferred to Pulaski Circuit Court. Overton filed two amended Complaints, alleging breach of contract, breach of express warranty, breach of implied warranties, negligence, and fraud, and asked for a jury trial. Coney answered

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generally denying the Complaints and alleging set-offs. Coney sent Interrogatories and Requests for Production to Overton. After several attempts to get responses, an Order to Compel Discovery was entered July 16, 2010. There is no documentation available that shows Overton ever served responses on Coney’s counsel. In June 2010, Coney’s counsel served Plaintiff’s First Requests for Admissions on Overton, who failed to file any 48

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responses. In July 2010, Coney filed a Motion and Brief to Deem Admitted Requests for Admissions. Overton filed no response. AlRizzo did not know of the existence of the First Requests for Admissions directed to him. The court entered an Order deeming the requests for admission as admitted. On September 14, 2010, Coney filed a motion for summary judgment, based on the deemed admitted requests for admissions. Overton

filed no response. Al-Rizzo did not know of the existence of the motion for summary judgment. On October 12, 2010, summary judgment was granted to Coney and the case was dismissed with prejudice. Al-Rizzo did not know of this order, was not informed of it by Overton, and only learned of it from another person at a later date. By email on December 19, 2010, Overton discharged Al-Rizzo as his client, but did not inform AlRizzo of the true status of his case and claim - that it had been dismissed with prejudice by summary judgment in October 2010, if Overton was aware of that action. On January 27, 2011, Overton filed his motion to withdraw. No order granting withdrawal was entered because the case file was closed on October 12, 2010. On June 6, 2013, for AlRizzo, Little Rock attorney Tim Steadman wrote Overton, putting him on notice of Al-Rizzo’s claims for legal malpractice in the Coney case, and asking that Overton’s malpractice insurer be notified. Overton informed Steadman that he had no insurance coverage or carrier at the time, offered his version of events, and stated Al-Rizzo still had more than a year to refile against Coney with any additional claims not previously made. In July 2013, Al-Rizzo filed a pro se lawsuit against Overton and his law firm for legal malpractice and on other grounds and seeking money damages. Due to the adverse outcome of his litigation with Coney, AlRizzo had to pay Coney $1,000.00 to finally settle Coney’s claims against Al-Rizzo. CHARLES BRIAN WILLIAMS, Bar No. 83180, of West Memphis, Arkansas, in Committee Case No. CPC 2014-032, by Consent Findings and Order filed September 19, 2014, on a referral from the Court of Appeals, was cautioned for failure to file appellate briefs on behalf of several clients in a timely manner. Williams represented A. Green, Cory, Leal, Rimmer, J. Green, Cantu, Harris, Dove, Smith, Hicks, Schiffer, and Johnson on appeals from their probation revocations. Williams failed to file briefs on behalf of his clients in a timely manner, despite being given extensions of time to do so. Because of his conduct, the Court of Appeals removed Williams as attorney in several of the cases. With his consent, Committee found that Williams had violated Arkansas Rules 1.1, 1.3(b), 3.4(c), and 8.4(d). 

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Vol. 49 No.4/Fall 2014 The Arkansas Lawyer

Arkansas Bar Foundation Memorials and Honorarium The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honorarium and scholarship contributions received during the period July 1, 2014, through October 15, 2014: In Memory of William C. “Bill” Adair Judge Robert “Bobby” Fussell

In Memory of John T. “Jack” Lavey Judge Robert “Bobby” Fussell

In Memory of William Woodyard III Judge Robin L. Mays

In Memory of Gary P. Barket David A. Boling

In Memory of Judge James G. Mixon Arkansas Bar Association Debtor-Creditor Section* Judge Robert “Bobby” Fussell *Designated to the Ernest G. Lawrence, Jr. Scholarship Fund

In Memory of Miriam Solomon Designated to the David Solomon Scholarship fund Judge Robert “Bobby” Fussell

In Memory of Justice Conley F. Byrd, Sr. Judge Robin Mays In Memory of Rubert “Buzzy” Crafton Judge Robert “Bobby” Fussell In Memory of John A. “Jack” Davis, III Designated to the John A. “Jack” Davis III Scholarship Fund The Rose Law Firm In Memory of Kay Eisele Judge Robert “Bobby” Fussell In Memory of Amelia Eldridge Judge Robert “Bobby” Fussell In Memory of Judge John N. Harkey Philip Anderson Sally and Jim McLarty In Memory of Michael Huckabay, Sr. Patti and Charles Coleman Mr. and Mrs. John Gill Philip E. Kaplan Judge Robin L. Mays Hayden and Gordon Rather Michael Spades, Jr. Ginger and Rex Terry Judge Bill Wilson

In Memory of Ralph Murray Judge Bill Wilson

HONORARIUMS AND SCHOLARSHIP CONTRIBUTIONS In Honor of David Solomon in 98th Birthday Designated to the David Solomon Scholarship Fund Lafe E. Solomon Rayman L. Solomon celebration of his

In Memory of Richard Roachell Mike Wilson In Memory of Judge Elsijane Roy Judge Robert “Bobby” Fussell In Memory of Eugene L. Schieffler East Arkansas Title Company LLC Phillips County Bar Association Hayden and Gordon Rather Roscopf & Roscopf, P.A. In Memory of Dennis L. Shackleford Designated to the Shackleford/Phillips Scholarship Fund Philip Anderson Judge Robert “Bobby” Fussell Karen and Dr. James Suen In Memory of Lewis D. Smith Mike Wilson

Friday, Eldregde & Clark/Herschel H. Friday Scholarship Fund Friday, Eldredge & Clark Foundation Wright Lindsey & Jennings LLP Scholarship Fund Wright Lindsey & Jennings LLP Memorial Gifts Please remember the Arkansas Bar Foundation when you choose to make a memorial gift honoring a family member, a colleague or a friend of the profession. Gifts to the Foundation are tax deductible for federal income tax purposes and support the Foundation’s charitable work.

David Solomon Honored for 75 Years of Practice in the Law For the first time in Arkansas Bar history, an attorney was honored for his 75th anniversary of active law practice. The legal community recognized and celebrated with David Solomon, of Helena, his 75 years of practice in the law. Mr. Solomon, who turned 98 years old in July, still has an active legal practice in Eastern Arkansas. He was honored at the 2014 Arkansas Bar Foundation Dinner in Hot Springs for this monumental accomplishment. He received three standing ovations and was joined at his table by his three sons and their wives as well as a dear friend and colleague of many years: David and Nancy Solomon; Lafe Solomon and Cam Crocket; Dean Rayman Solomon and Carol Avins; and, Charles B. Roscopf.

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IN MEMORIAM Virginia Atkinson Virginia Atkinson of Little Rock died on October 11, 2014, at the age of 93. She attended Arkansas Tech University for two years before transferring to the University of Arkansas at Fayetteville where she majored in English. She graduated from the University of Arkansas School of Law in Fayetteville in 1955 and was the only female in her class. She earned her PhD in 1969. She worked as a lawyer in Little Rock for more than five decades, serving first as a deputy prosecuting attorney for both Frank Holt and John Jernigan, and then opening her own law practice as a defense attorney. She maintained an active practice well into her late 80s. She was a member of the Arkansas Bar Association and was a Fellow of the Arkansas Bar Foundation. Judge John N. Harkey Judge John Norman Charles Harkey of Batesville died on August 1, 2014, at the age of 81. He earned an associate degree from the Marion Military Institute in Alabama in 1952. He enlisted in the United States Marine Corps and attended Officerâ&#x20AC;&#x2122;s Candidate School in Quantico, Virginia. He was honorably discharged as a first lieutenant after having served during the Korean War. He attended Arkansas College (now Lyon College). He graduated in 1959 from the University of Arkansas School of Law in Fayetteville and began working as a deputy prosecuting attorney and was elected prosecutor for the old 3rd Judicial District. He was a founding member of the Arkansas chapter of the Arkansas Civil Liberties Union. The majority of his private practice was spent in Batesville. He practiced law with M.F. Highsmith, Bill Walmsley, John Belew, Leroy Blankenship, and Tim Weaver, in addition to his son, Adam Harkey. In 1988, he was chosen as a Special Justice to the Arkansas Supreme Court, later served as Juvenile Judge, and was elected Circuit Judge for the Sixteenth Judicial District of Arkansas in 1992, serving until his retirement in 2008. He was a member of the Arkansas Bar Association and was a Fellow of the Arkansas Bar Foundation.

Mike Huckabay, Sr. Mike Huckabay, Sr. of Little Rock died on October 1, 2014, at the age of 74. Mike graduated from Ouachita Baptist University in 1962 with a degree in Political Science. In 1965 he earned his law degree from Vanderbilt Law School. He began his law career in Little Rock at the law firm Pope, Pratt and Shamberger, after which he practiced with Tom Gentry. He was then recruited by his beloved senior partner, Sam Laser, in the early 1970s to the firm which soon became Laser, Sharp, Haley, Young, and Huckabay. In 1984 Mike founded the law firm Huckabay, Munson, Tilley and Rowlett. In 2011, he and his son began the Huckabay Law Firm where he practiced with Kathryn Knisley and Jay Sayes. He was a Fellow in the American College of Trial Lawyers, a member of the International Society of Barristers, and a Diplomat of the American Board of Trial Advocates. He was a member of the Arkansas Bar Association and was a Fellow of the Arkansas Bar Foundation. The Arkansas Bar Foundation and Arkansas Bar Association honored Mike with the Outstanding Lawyer Award this year in recognition of excellence in the practice of law and outstanding contributions to the profession. E.L. Schieffler E.L. Schieffler of West Helena died on September 28, 2014, at the age of 86. He served in the Navy at the end of World War II and was a Judge Advocate in the Air Force during the Korean Conflict. He practiced law in Phillips County for over 50 years. He helped to found the West Helena Savings and Loan and helped to build the Phillips County Slack Water Harbor. He was a lifelong supporter of the Boy Scouts of America, and more than once served as the Scoutmaster of Troop 20 in West Helena. He was a member of the Arkansas Bar Association where he served on the House of Delegates. He was a Fellow of the Arkansas Bar Foundation. The information contained herein is provided by the membersâ&#x20AC;&#x2122; obituaries.

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