JANUARY 1978

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FOR THE PRACTICING ATTORNEY

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Addenda, continued from page 55

award to Wright states: "His greatest monument was the leadership he provided in the painstaking work of drafting and in the sensitive task of securing adoption of our Code of Professional Responsibility." This revised code to govern lawyers' professional conduct was adopted at the ABA's 1969 annual meeting and nearly all states have used it as a guideline in drafting their official codes. The revision, accomplished while Wright was chairman of an ABA Special Committee on Evaluation of Ethical Standards, replaced the original ABA Code adopted in 1908.

In addition to his ABA offices, Wright has served as president of the Arkansas and Pulaski County Bar Associations and the American College of Trial Lawyers. He also served as chairman of the ABA's policy-making House of Delegates in 1962-63 and was a member of the House for 36 years, 21 as chairman of the Arkansas delegation. When Wright became ABA President in 1970, he was the second Arkansan to head the organization. The first was the late U. M. Rose, also of little Rock, in 1901-02.

A native of Little Rock, Wright received an A.B. degree from Little Rock College in 1923 and an LL.B. degree from Georgetown University in 1928. Georgetown also awarded him an honorary Doctor of Laws degree in 1968. Wright was chairman of the Arkansas Board of Law Examiners from 1938 to 1941 and helped draft the Arkansas Probate Code in 1948. He served as the Arkansas representative on the National Conference of Commissioners on Uniform State Laws from 1945 to 1957 and as a member of the Second Hoover Commission Legal Task Force in 1954 and 1955.

In 1963 he was appointed alternate delegate to the first World Conference on World Peace Through Law, held in Athens, Greece. He was a Fellow of the American Bar Foundation, American College of Probate Lawyers and American College of Trial Lawyers.

Among his many awards were Outstanding Lawyer Award of Arkansas Bar Foundation, 1963; Hatton W. Sumners Award of Southse/A",an.a. Lawyer/January 1978

western Legal Foundation, 1965; and National Conference of Christian and Jews Brotherhood and Humanitarian Award, Arkansas Chapter, 1969.

LEGAL AID PROGRAM Approximately $700,00.00 in federal funding will be available next Spring to support the establishment of new legal aid programs in Arkansas or the expansion of existing programs into adjoining counties, according to an estimate given the Legal Aid Committee by the Regional Director of the Legal Services Corporation. The Corporation issued grants in excess of $560,000 for legal aid expansion in Arkansas this year. As a result indigents in seventeen counties now have access to a legal aid program.

To assist in the planning of the use of the expansion funds, the existing legal aid programs funded by the Corporation have created a Legal Services of Arkansas Programs Office. Ms. Mary Johnston has been hired as Planner for the Programs Office. The Office is funded by a six-month grant by the Corporation to the Central and Northeast Arkansas Legal Aid Bureaus.

An application to the Corporation for permanent funding of this position is pending.

Ms. Johnston is writing and traveling in Arkansas to gather information from attorneys, social services personnel, community action agencies and other community groups (1) to assess local needs and desires for a legal aid program, and (2) to determine the feasibility of state-wide administration of legal aid programs in Arkansas. The Programs Office is presently governed by a committee which includes Wayne Boyce, President-Elect of the Arkansas Bar Association, Vincent Foster, Jr., Chairman of the Legal Aid Committee, Griffin Stockley, Director of the Legal Aid Bureau of Central Arkansas, Robert Lamb, Director of Legal Services of Northeast Arkansas, Inc., and Douglas Wilson, Director of Northwest Arkansas Legal services.

Ms. Johnston graduated from Michigan State University, and then was a Vista volunteer at Jonesboro.

She recently graduated from the

University of Arkansas School of Law at Fayettevilie.

The Legal Aid Committee urges the cooperation of lawyers and local bar associations with Ms. Johnston.

If you have an interest in a legal aid program in your community, or would like additional information, you may contact either the Legal Aid Committee or Ms. Mary Johnston, Suite 36 Hall Building Annex, 209 West Capitol Avenue, Little Rock, Arkansas 72201.

HUMANITIES SEMINARS The National Endowment for the Humanities, a Federal agency, will continue its program of humanities seminars for lawyers and judges in 1978. The seminars - which meet during the summer at selected colleges and universities - will bring lawyers together for a month of full-time study under the direction of distinguished philosophers, historians, and others. The seminars are designed to give participants the opportunity to stand back from their work and explore the humanistic dimensions of their profession by studying such topics as the legal profession and social justice, the relationship between lawyers' personal and institutional roles, and the relationship between crime and punishment in a democratic society.

A second series of seminars open to the members of various professions, including lawyers, will deal with the ethical dimension in contemporary life, value confli~t in our society, the cultural foundations of U.S.-Asian foreign relations, individualism in American society, and contemporary religious movements.

From 12 to 15 persons will attend each seminar tUition-free, receiving a stipend of up to $1,200 to cover expenses, plus reimbursement for travel. Lawyers in all sectors of legal employment, except those with fulltime academic appointments, may apply. The application deadline is tentatively set for April 17, 1978. Further information about the seminars, application forms, and selection criteria may be obtained from: Professions Program, Division of Fellowships, National Endowment for the Humanities, Washington, D.C. 20506. "

ADDENDA

by C. E. Ransick Editor

MEMBERSHIP SURVEY RESULTS The following items on The Arkan... Lawyer were listed in the recent Membership Survey: "I read The Arkan... Lawyer: __Cover-to-cover each issue. __Occasionally. __Never.

"The Arkan... Lawyer should: --Contain less news (Regular Features) and more professional essay articles (Special Features). __Should not change. __Kindly give your overall evaluation of our Bar Journal:" We included these items in the Member.hlp Survey with some trepidation. The Arkan... Lawyer is generally recognized around the other State Bar Associations as one of the finest law journals; 'many associations have now adopted this magazine type for their publications.

On September 27, 1977, we reviewed all of the Memberahlp Surveya received. Conceming the first 109 indicated that they item generally read The Arkan... Lawyer "cover-to-cover"; 104, "occasionally"; and 3, "never".

Thus there were 213 qualified to go onto the second item. 44 favored "less news and more professional articles"; 137 were satisfied with the current content; and the balance did not show any preference.

Re overall evaluation of The Arkan... Lawyer, 24 gave an "excellent-very good" rating;路 52, "good"; and 11 "average", The remaining gave no rating. Some made constructive suggestions.

We are most appreciative of the varied constructive suggestions.

The trend is towards more professional articles - this is supported by the 44 who favored "less news". The so-called professional

articles include "how to" articles, topics of interest, input from practicing lawyers, "practical" articles, "continuing education" coverage, "areas of specialization" features, Arkansas statutory and case law, "pro and con" controversial topics, current developments in law, and criminal law matters.

Based upon the Memberahlp Survey, (1) We will continue the Regular Featurea (President's Report, Juris Dictum, Legal Economics, Law School News, Oyez-Oyez, In Memoriam, Executive Council Notes, Context, Ethics, AICLE News, Aegis and Addenda) to keep the membership advised as to the current "goings-on" of the Bench and Bar in Arkansas.

(2) We will make an especial effort to publish more articles on the "practical areas of the Law", as one survey put it.

(3) Except in especial cases, issues will no longer be dedicated to any individual. This January 1978 issue on Mr. Harry Meeks is the type of especial case considered appropriate for continued bar journal coverage.

Finally, we invite the membership's future comments for the betterment of The Arkan... Lawyer and, moat Importantly, your own legal articles for consideration for publication. Who better than the Arkansas lawyer to write a "how to," "practical" article on current d&velopments in Arkansas law for the "continuing education" of his fellow lawyers! I Your cooperation and assistance are much appreciated.

HONORED The International Academy of Trial Lawyers honored senior Judge John E. Miller of the Western District of Arkansas U.S. District Court with

a banquet and ceremony on August 7, 1977 at Jacques and Suzanne's Restaurant, Little Rock.

President of the Academy Sid McMath stated that the Academy's Board of Directors had voted in a New York meeting in February to honor Judge Miller, describing him as "one of the great trial judges in the United States". Judge Miller, now 88, has been a federal judge since 1941, when he resigned from the U.S. Senate to accept appointment to the Bench. He has been on "senior judge" status for years, but still presides over a few cases.

U.S. Senator Dale Bumpers, Chief Justice Carelton Harris of the Arkansas Supreme Court, Federal Judge Oren Harris, and Arkansas Bar Association President Walter R. Niblock were among those present paying tribute to Judge Miller. Over 100 lawyers - many visiting from other States in the Academy's Central United States Region - attended the ceremony. The Academy presented Judge Miller with a plaque for the occasion.

AMEN The American Bar Association has posthumously presented its highest award - the ABA Medal to Edward L. Wright. A past ABA president and described as a giant in the organized bar, Wright died after being stricken by a heart attack in his office on February 2, 1977.

Justin A. Stanley, then ABA president, presented the medal to Wright's son, Edward L. Wright, Jr., during an ABA Assembly session on August 8, 1977.

The controlling criterion for earning the ABA Medal is "Conaplcuou.

MrVk:e to the cau. 01 Amertcan jurlaprudence."

The citation accompanying the continued on page 56

January 1978/Arkansas Lawyer/55

Lege. Economics continued from paga 53 client. If you send a bill for $300 and the bill shows three short entries, the client will automatically assume that you're charging him $100 per entry. His response is often, "Why, he charged me $100 for that phone call, and we only talked ten minutes!" If instead you expand the description at services or type them in a narrative form. using wider margins on a smaller sheet of stationery so that more lines are needed and less white space is visible, you can avoid this response from the clienl. Instead, the effect is this: "He did so much for me it hardly fits on one page!" That's the response you want when the client receives your bill.

only to find your client horrified at the amount. An unexpectected bonus of a monthly billing cycle is this - you will identify the client who can't or won't pay your bill before you have buill a large fee. If you are not going to get paid for your services, you will know after a month or two rather than at the conclu-

sion of a lengthy, complex legal matter, and you will have an opportunity to discuss the situation with your client

while he still needs your services.

If you already have a monthly cycle but find that the total production of the firm for several days at the end of the month revolves around the preparation

of bills, consider modifying your billing cycle to a cyclical one. That is, send

bills to clients whose names begin with A through F the first week in every month, G through M the second week, N through S the third week, and the letters T through Z in the fourth week. In this way you will prepare billing a little at a time all Ihrough the month thereby avoiding the slowdown in preparation of client documents which occurs with

your present monthly system.

In addition to being the lawyer's source of income, the lawyer's bill can

be and often is the source of poor lawyer-client relationships. Well constructed,

carefully

itemized

relationship. ' "

Don't send a bill for several thousand dollars with only a one or two-line description of services rendered. Your client will have no idea of your effort on

his behalf (and perhaps the efforts of several others in the firm) and will react with outrage, possibly refusing to pay the fee. Bills of this type are the result of (1) no billing system or (2) no billing system plus the lawyer's reluctance to take the time to review the file in order to itemize the bill. Any billing system is an improvement over this type of bill.

Nothing makes a client unhappier than to have a bill sent to a wrong address, his home instead of his office (or vice versa), or to him personally rather than his company. To avoid these mis-

understandings, include billing instruclions on the index pages in the notebooks or on the index cards in card trays. Indicate thereon whether the bill is for an individual or a corporate entity addressed in care of an individual in the company. Indicate also the billing address particularly if it differs from the usual mailing address for correspondence to the client.

When you review the draft of the bill, indicate whether you want the bill mailed as is or whether you want it returned to you so that you can enclose a cover letter with it. A well~rafted cover letter can

cushion the blow that a lawyer's bill often deals to the client and can inform the client of unusual or unforeseen circumstances which resulted in a higher

fee or, happily for the fee.

clien~

a reduced

Offer to send monthly bills to your client - you will be surprised at the positive response you will receive from

your clients to say nothing of your improved cash flow. Most of us today are geared to monthly payments a lawyer's services need be no exception.

It Is much easier for you to prepare and

for your client to pay a monthly bill than it is to stagger through the preparation of a bill covering many months' services,

54/Ar1<ansas Lawyer/January 1978

bills

produces by simple timekeeping methods can do much to improve that

MEMORIAL GIFTS "It is more blessed to give than to receive."

However, a member profits both ways with a memorial gift 10 the Arkansas Bar Foundation. One's gift is a beautiful way of honoring a former colleague and friend. The gift is noted in the Foundation's Memorial Book and, of course, is tax deductible. The family of the deceased is most appreciative of such remembrance.

One may record the Memorial Gift in two ways, viz.: (I) The new Memorial Cards have just been furnished each member for direct mailing in one's own business envelope to the family of the deceased. Thus, the family will be immediately notified of the thoughtfulness of the donor.

The check is sent to the Foundation at the same time for notation in the Memorial Book. Additional Memorial Cards are available upon request. It is emphasized that these are new-type cards - never before available.

(2) Memorial gifts may be sent directly 10 the Arkansas Bar Foundation, with request that the Foundation send a memorial acknowledgement to the family of the deceased, naming the contributor but not specifying the amount given. The memorial cards are formal and promptly delivered upon receipt of the memorial gift.

Either way is most appropriate. One's thoughtfullness in making a memorial gift to the Arkansas Bar Foundation will not only meet with the complete approbation of the members of the family of the deceased, but will at the same time provide the Foundation with funds to carryon the noble purposes for which it has been dedicated.

s DATE

INITIALS

CLIENT

MATTER

CODE

TIME

MONEY

AOOITIONAL COMMENTS:

_

!'"Olf"" SAM路2&4M (&.70)

the previous systems, the notebook pages become a first draft of the bill; however, the automatic typewriter provides two important bonuses; (1) no reo typing is necessary to create the final bill - the final bill -the secretary simply edits the media instead; (2) no timeconsuming filing of cards and slips and no waiting for cards to be pulled, sorted and typed. Billing entries are instead "filed" on the media.

A billing notebook provides another bonus - an instant review of billable charges at any time. Should a client ask for an estimate of your fee to date, you can provide it quickly and accurately by reviewing the notebook entries for that client.

More sophisticated billing methods are available and are rapidly becoming affordable for smaller firms. These systems require small computers or electronic word-processing equipment utilizing minicomputers. Depending on the equipment used, such reports as automatic aging of accounts, payment records, and profitability reports are available as a byproduct of the billing information typed into the system.

Equipment is available which combines word processing (automatic or power typewriting) and data processing (--billing systems for lawyers---) on one machine an important consideration for small firms.

Keep billing materials in your briefcase, regardless of the system you use.

Keep extra time cards or slips and a second calendar at home to record the many requests for services or advice which every lawyer receives at home.

Here are a few important tips regarding the appearance of the final bill and the effect that appearance has on the

Fig. 1

I

I I

I

CL.U:NT

I;

CJI>SC

TOTAL TIME

DATE 0 I

T E

C N

0 P

C T

R

L

E

I

:

I I

: I I

: ; I

: :

I

.

I

.

I Fig. 2

.1 hr.

=

6 minutes

.2 hr.

=

12 minutes

.3 hr.

=

18 minutes

.4 hr.

=

24 minutes

.5 hr.

=

30 minutes

.6 hr.

=

36 minutes

.7 hr.

=

42 minutes

.8 hr.

=

.9 hr.

=

1.0 hr.

=

48 minutes 54 minutes 60 minutes Fig. 3

continued on page 54 January 1978/Arkansas Lawyer153

LEGAL ECONOMICS

by Fran Shellenberger

How To Send A Bill Your Client Is Willing To Pay. Nearly every lawyer with whom I have

talked in the past several months has asked for my help in creating billing systems. Their complaints vary from "no system whatsoever" to systems which take a week to complete fiNery month.

Lawyers with no billing system afe spending time on behalf of clients for which they do not get paid because they cannot or do not send a bill. At best they guess at a fee. send an unitemized bill for services and hope the client doesn't

contest the fee. At worst, the delay between the time services are performed until the time the bill is sent is so great that most lawyers either send no bill at all or greally reduce the fee.

The object of any billing system is to present a bill showing the lawyer's efforts on behalf of the ctient for which the lawyer is entitled to a fee and to itemize the out-of-pocket expenses incurred on

behalf of the client for which the lawyers may be reimbursed.

Simple or complex - every billing system requires some means of recording the client malters handled daily. This record includes the date, client or file name, a description of the services, the lawyer's initials and a method of determining the billing rate, whether hourly or otherwise, on which a fee may be based.

Timekeeping methods, such as billing cards and timeslips, have been discussed in an earlier column. (see THE ARKANSAS LAWYER, Legal Economics. "Keep Time - Your Time and Hour Time," October, 1975). To review briefly, timeslips and cards are printed in such a way that the lawyer has only to check a box or circle an initialled reference to describe services. using an abobreviation code which appears on every slip for easy reference. There's a blank for the file name or number, the lawyer's initials and a place for entering a twodigit number or fraction to indicate the time involved. These cards are a great timesaver themselves because they take most of the time out of timekeepingl They are available commercially (see Fig. 1) or you can design one that fits the needs of your firm and have it printed 1052/Arkansas Lawyer/January 1978

cally (see Fig. 2). Figure 3 shows a chart you can use for figuring time charges in decimals. I have found decimals to be much more convenient than fractions in computing time charges.

In use, the lawyer will work with a page or sheet or timeslips or pertorated timecards, making notes on the slips as the day's activities progress. For instance, if a notation has been made in the morning regarding a telephone conference with Carl Client and another call is made on that client's behalf later in the day, it is not necessary to write another card; simply make a second entry on that same card.

Regularly, preferably daily, the slips should be gathered by a secretary or bookkeeper for "processing," which can take several forms. If cards are used, generally they are filed in card trays containing index cards for each client or client matter. (If you prefer, they may be placed in a pocket or envelope in the file). At billing time, the cards are pulled, arranged in chronological order (or in chronological order by attorney if several attorneys are handling the matter) and a draft statement is prepared from the information on the cards. Then, either the secretary or the bookkeeper adds the out-of-pocket expenses, totals the billable hours and presents the draft to the attorney for review. If enough information has been provided on the timecards or slips, no review of the file is necessary to complete the bill. All the lawyer has to do is edit the draft copy, set the fee for services, and return the bill to the secretary for final typing. Once in final form, extra copies are made for office records (and for the client's file if you wish) and the bill is ready to mail, with or without a cover letter as circumstances dictate.

If you dislike handling time cards and slips, (or if you can't get other firm members to use them), it is possible to adapt your appointment calendar for billing purposes. The trick is to use a calendar allowing enough epace per entry to accurately describe the services. (If you don't make a detailed entry, the informa-

tion will be unusable for billing purposes, and you'll end up not charging the client for the work or reducing the fee because you can't justify it.) If you use your appointment calendar for billing purposes, ask your secretary to post the information thereon onto billing pages kept in a 3-ring notebook at her desk. When it is time to send a bill, her notebook pages will serve as the first draft of the bill. From that information, it is fairly simple to prepare a final bill. The calendar method is not the best billing method available, but many lawyers who refuse to adopt more sophisticated billing systems will use it.

If none of the above methods appeal to you or if the "systems" approach is offensive to others in the firm, try this simple dictation method. At the end of each item dictated, include billing instructions for that item at the conclusion of that dictation. Simply say, "charge .5 hr for this letter, etc." Your secretary already knows which client or file to charge, (if she doesn't, she will ask you) she knows your initials and today's data. Having transcribed the letter or instrument herself, she can accurately describe the services being billed. She then types these billing entries onto billing pages kept in a 3-ring notebook at her desk.

When you're ready to bill the client, simply review the billing pages, treating them as a first draft of the bill. In this way, your secretary can actually maintain billing records for you as a by-product of her daily dictation. I have used this method successfully for a lawyer in another state where no billing system existed in the firm.

All of these billing methods may be streamlined somewhat if you use an automatic typewriter. Instead of filing time cards and slips or manually typing billing entries onto notebook pages, have the entries typed daily onto the media used by the automatic typewriter - either a disk, tape, card, memory or buffer system. Have the secretary keep a printout or copy of the billing entries in a notebook, with alphabetized or numbered tabs for client identification. As in

(3) The generaJ scope of the Investigation lncludinl a description of the offense and, if permitted by law, the Identity of the vl(dm.

(4) A request for usb-lance in apprebendina a susput or assistance In other matten and the [0..

formation necessary therein.

(5) A warnlna 10 the public of any danaers.

(B) A lawyer or law firm associated with the prosecution or defense of a crimllUll matter shall not, from the time of the fiUn. of a complaint, information, or ludictmeot, the bisuaDce of an arnsl warraat, or arrest until the commencement of the trial or disposition ,,-ilhoul lrial, make or participate in mak.

Ing .an extrajudicial statemtnl thai a reasonable person would exp«1 to be disseminated by mearu of public communication and tbal relath' to: (1) The characler, reputation, or prior criminal record (including arrests. indictments, or olber cbarges of crime) of the accused.

(2) The possibility of a plea of guilty to tbe offense charged or 10 a lesser offense.

(3) Tbe exislence or rontents of any confess-Jon, admission, or sLattment gh en by the accused or his refusal or failure 10 make a stalemenL (4) The performance or results of any examinations or tests or the refusal or (aUure of the a«used to submit 10 naminations or tests.

(5) The IdentilY, lestimony, or credibUlly of a pros-pectin witness.

(6) Any opJnion lUi to the gulll or innocence of tbe accused, the e"id~oce, or Ihe merits of the case.

(C) DR 7-107 (B) does not preclude a lawyer durin, such period from allJlOuncing: (I) The ".arne, age, residence, occupatioo, and family status of the accused.

(2) U the accused has not been apprehended, any Information necessary to aid In bi.!i al)prehenslon or to warn the pubUc of aoy dangers be may present.

(3) A request for assistance In obtainlnl e,·lduct.

(4) The identity of the ylctim of the crime.

(5) The fael, time, and place of arTf:st, reslslaue, pursull, and use of weapons.

(6) The Identity of investigating and arresting officers or agenck! and the length of l..be lonstigalion.

(7) At the time of senure, a description of the p"y" ieal e"idence selled, olber than a confession, admission, or statement.

(8) The nature, substance, or text of Ihe cbarge.

(9) Quotations from or references to public records of the court In the case.

(10) The scbeduUnl or result of any step in lbe judicial proc~jop.

(II) Tbal Ihe accused denies the cbaraes made agaInst biOI. (D) During the sel«tion of a jury or the trial of a criminal maUer, a lawyer or law firm associated with the prosecution or defense of a criminal matter shall Dol make or participate in making an extra-judicial statement thai a reasonable person ¥t'ould expect to be disseminated bl means of public communication and thai relates to the trial, partiu, or issues In the trial or otber mallt:rs that art: reasonably likely to Interfere wllh a fair trial, ex«pl lhat be may quole from or refer without comment to pu~ Iic records of lbt: court In the case.

(E) After the complt:tion of a trla.I or disposition wllbout trial of a criminal mailer and prior to tbt imposition of stnteoce, a lawyer or law 6rm assodated with (he prosecuUon or defense shall nol make or particlpale In making an eXlrajudicial slatement thai a re.asonable person would expect to be disRminated by public communication and that is reasonably likely to afl"t:ct the imposition of sentence.

(F) The foregoing proYislOlU of DR 7-107 also apply to professional disciplinary procudings and juvenile disciplinary proceedings wben pertineot and COD· sisteDt with other law applicable to such procettJ. Inll'(G) A lawyer or law firm assoclaled wllb a c:IyU action shall oot during Its InYestigatlon or litigation make or participate In making an ntrajudJclal statement, olber than a quotatioo from or reference 10 public records, that a reasouble person would expecl 10 be disseminated by means of pubUc communication aDd that relales 10: (1) Evidence regardlnl the occurrence or traosac· tion inyoh·ed.

(2) The character, cndibml1, or aimlnal record of a party•.witness, or PT05Pective wllness..

(3) Tbe performance or results of any examinations or tests or tbe refusal or fallure of a pari)' 10 submil to such.

(4) His opinion as to Ihe merits of the claims or de-fensu of a party, eKcepl as required by law or admiolstratln rule.

(5) Any olber matter reasonably Ukely to intmere ",ith a fair trial of the action..

(II) Durine the peodt:ncy of an admlnl.stradn procud-

ina, a lawyer or law firm associated therewith shan nol make or participate In making a statement, other than a quotation (rom or reference 10 public records, Ibat a reasonable person would expect to be dissemlnaled by means of public communication if It is made oufsJde lbe official coune or the procudine and relala: to: (1) EvlMnce reprdloe the oceurren« or transaction In,·ohtd.

(2) The character, credibilll)', or criminal record of a parly, witness, or prosp«tive wilness.

(3) Physical evidence or the performance or results of any examlnatlod!l or lests or the refusal or faiJure of a party to submit to such.

(4) His opinioa as 10 the merits of the claims, • fenses, or positions of an Int~rested person.

(5) Any olber mailer reasonably likely to loterfere wilh a fair hearing.

(I) The foregoing provlsions of DR 7-107 do not pre. dude a lawyer (rom replying to cbarees of misconduel publicly made against blm or from participal. inc In Ibe proceedlnp of legislative, administnltin, or olher Inyesligatin bodies.

(J) A lawyer shall exercise reasonable care to prevent his employees and aS50Ciates from making an extra. judicial statemenl Ibat he would be prohibited from making under DR 7-107.

DR 7-108 Communication with or Invesdption of Jurors.

(A) Before the trial of a case a lawyer conn«ted the~ with pall not communicale wltb or cause aoolber to communicate ¥tllh anyone he knows to be a member of Ibe yenlre from whicb the jur')' wW be selected for the trial of the clUie. (8) During Ihe trial of a case: (I) A lawyer tonnected therewith shall not communicate with or cause anotber 10 communicate ,,"Ith aoy membe.r of the jury.(2) A lawyer ",bo is not conn«led therewith shall nol communlcale with or cause another 10 communicate "'lib a juror concerning Ibe cast.

(C) DR 7·108 (A) and (8) do nol prohibit a la"yer from commuakatinc with vertirtme.n or juron in the course of oftklaJ proceedlocs(D) Afler discharp of Ibe jury (rom further conside...... tion of a case with which the lawyer was conn«ted. the lawyer shall not ask qUtitlolU of or make com· ments to a member of Ibnt jury that are calculated merely 10 harass or embanass tbe juror or 10 Influence his actions in future jury suvice.(E) A la", yer sba.U nol conduel or cause, by financb.) support or olberwlse, another to conduel a vexa· tious or harassing Investipdoo of eitbtr a yen.ire-man or a juror.

(F) AU r~trictioos imposed by DR 7-108 Upoll a lawyer also apply to communications with or invullgations of members of a family of a "enireman or a juror.

(C) A lawyer ball reveal promptly to the court Jmproper conduel by a venireman or • juror, or by aDothu toward a Ye.o.ireman or • juror or • member of bls famlJy, of whicb the lawyer has knowledee.

DR 7-109 Contact with Wltoesses.

(A) A lawye.r sball 001 .uppnss any evidenct: that be or bis ciieot has • lept obligation to reveal or produ«.,(B) A lawyer shall 001 advise or cause a person to se. cnle himse.1l or 10 leave the jurisdiction of a trJ.. bunal for tbe purpose of maldoe him unavailable as a wllDess {bueln.'"

(C) A lawyer sball DOt pay, olJer to pay, or acquiesce In the paymenl of compensation to • witness contingent upon the coale.nl of his testimony or the oulcome of Iht C'&M!.tD But a lawyer rnal adYance, par. antee, or acquiesce In the payment of: (I) Expenses reasonably Incurred by • "Jtness in auending or teslifyin&o (2) Reasonable compensation to a wllness for his loss of time In allendJng or testifying.

(3) A reasonable fet for Lbe professional services of an expert wlloess.

DR 7·110 Contact with OfIidals.n (A) A lawyer dlaU DOl lin or lend any thin. of ....lue to a judae, official, or employee or a tribunal.

(8) In an adversaJ'}' proceeding. a lawyer shall not communicale, or cause anolbt:r 10 communicate, as 10 the merits of the cause with a judge or an official before ¥thorn the proceediog is pending, except: (1) In the coune of official proc:eedinas In the cause..

(2) In writing II be promptly delivers a ropy of the ¥t'riting to opposing counselor 10 the adverse party If be is nol represented by a lawyer.

(3) Orally upon adequate nollce 10 opposJne coun· se-I or to the adyUH: party If be is DOt repreKnled by • lawyer.

• (4) As olberw_ autborlud by law.- ~

January 1978/Ar1<ansas Lawyer/51

CODE Of PROfESSIONAL RESPONSIBILITY CANON 7

A LAWYER SHOULD REPRESENT A CLIENT ZEALOUSLY WITHIN THE BOUNDS OF THE LAW DISCIPLINARY RULES DR 7·101 Representing a Client Zealously.

(A) A lawyer shall 1I0t Intentionally:" (1) Fail to seek the lawful objectives of bioi client through reasonably lU'alJable meansf' permUted by law and the Dlsclplina.-y Rules, except as provided by DR 7·101 (8). A lawyer does DOt violate this Disciplinary Rule, however, by ac· ceding 10 reasonable requests of Ol)posing coun· sel which do not prejudice the rights of his client, by being pundual in fulfilling all professional commitments, by avoiding offensive tactics, or by treating with roul'"lesy and consideration all persons involved In the legal process.

(2) Fail to carry oul a cOlllracl of employment entered inlo with a client for pl"ofessional services, but he may withdraw as permitled under DR 2·110, DR 5-102, and DR 5-105.

(3) Prejudice or damage his client during the course of the professional relationship," ncept as required under DR 1·102 (8).

(B) In his representation of a client, a lawyer may: (1) Where permissible, exercise his professional judgment to waive or fail to assert a right or position of his client.

(2) Refuse to aid or participate in conduct that he believes to be unlawful, even thou~h there Is some support for an argument that the couduel Is legal.

DR 1·102 Representing a Client Within tbe Bounds of the Law. (A) In his representation of a client, a lawyer shall not: (I) File a suit, assert a position, conduct a defense, delay a trial, or take other action on behalf or his client when he knows or when It is obvious that such action would sene merely to harass or maliciously Injure another."

(2) Knowingly advance II claim or defense that Is unwarranted under existing law, except that he may advance such claim or defense if It can be supported by good faith argument for an u· tension, modification, or ret'ersal of nisfing law.

(3) Conceal or knowingly fail to disclose tbat wbicb he Is required by law to reveal.

(4) Knowingly use perjun:d testimony or false evidence. TO (5) Knowingly make a false statement of law or fact.

(6) Participate in the creation or preservallon or evldenu when he knows or It is obvious tbat the evidence Is false.

(1) Counselor assist hlJ client In conduct that the lawyer kno,,'S to be illegal or fraudulent.

(8) Knowingly engage In other illegal conduct or conduct contrary to a DlJcipllnary Rule.

(8) A lawyer wbo receives Information clearly establishing that: (1) His client has, In the course of the representation, perpetrated a fmud upon a person or tribunal shaH promptly call upon bis client to rec· Ilfy the same, and If his client refuses or Is unable 10 do so, he shall reveal the fraud to the affected person or tribunal."

(2) A person other than his client has perpetrated a fraud upon a tribunal shall promptly reveal the fraud to the tribunal."

DR '·103 Performing the Duty of Public Prosecutor or Other Government Lawyer."

(A) A public prosecutor or other government lawyer shall not Institute or cause to be instituted criminal charges when he knows or II Is obvious that the charJ!,es are not supported by probable cause.

(8) A public prosecutor or other government lawyer In criminal litigation shall make timely disclosure to counsel (or the defendant, or to the defendant if be bas DO counsel, of the emlenct: ot evldenc;e,

5O/Arkansas Lawyer/January 1978

known to the prosec;utor or other loveroment law. yer, that tends to negate tbe guilt of the accused, mitigate the de&tee of the otrense, or reduce the punlsbment.

DR 7-104 Communicatina With ODe of Adverse In· leresL'· (A) During the course of his representation of a client a lawyer sball not: (1) Communicate or cause another to communicate on the subject of the representation with a party he knows to be represented by a lawyer 10 that maller unless he bas the prior consent of the lawyer representing such other part)"'& or is autborlzed by law to do so.

(2) Give advice to a person wbo is not represented by a lawyer, other than the advice to secure counsel.7t if the interests of such person are or have a reasonable possibility of being in cOnflict wltb the Interests of his c1lenL'" DR 7-105 Tbreatenlng Criminal Prosecution.

(A) A lawyer shall not present, participate In presentinl, or threalen to present criminal charaes solely to obtaln an advantage In a civil matter.

DR 7-106 Trial Conduct.

(A) A lawyer sball not disregard or advLw: blJ client to disregard a standing rule of a tribunal or a rulinl of a tribunal made In the course of a proceedlna, but he may take approprlate steps In aood faith to test the validity of such rule or ruUna. (8) In pre.senllna a matter to a tribunal, a lawyer sball disclose:'" (1) Legal authority In the controlling jurisdiction known to him to be directly adverse to the p0sition of blJ client and which Is Dot dIsclosed by opposing counsel.'"

(2) Unless privileged or irrelevant, the Identilles of the clients he represents and of the persons who employed him.»

(C) In appearing In bls professional capacity before a tribunal, a lawyer shall not: (1) State or allude to any matter that he bas no reasonable basis to believe Is relevant to the case or that will not be supported by admissible evidence.1l (2) Ask any question that he bas 00 reasonable baslJ to believe is revelant to the case and that Is intended to dearade a witness or other per· son."

(3) Assert his personal knowledge of the facts to Issue, except wben testifying as a witness.

(4) Assert bls personal opinion as to the justness of a cause, as to the credibility of a witness, as to the culpability of a civil litigant, or as to the guilt or Innocence of an accused;" but be may araue, on blJ analysis of the evidence, for an)' position or conclusion with respect to the matters stated bereln.

(5) Fail to comply with known local customs or conrtesy or practice of tbe bar or a particular tribunal witbout alvina to opposlna counsel timely notice of his intent Dot to compl,.."

(6) Enaale in undignified or discourteous conduct wblcb is dearadlnl to a tribunal.

(1) Intentionally or babitually violate any atabo llibed rule of procedure or of evidence.

DR 1-107 Trial Publlclty.(A) A lawyer particlpatinl In or associated with the I... vestiption of a criminal mailer shan not make or participate In mak.lna aD edraJudlcla1 statement that a reasonable person would uped to be disIemlnated by means of public commuoic.ation and that does more than date without elaboration: (1) Informadon contained in a pubUc I"ttord.

(2) That the InYesdptlon II In proar6$.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK New Faculty Members Three new faculty members have joined the University of Arkansas at Little Rock School of Law, increasing the fulltime teaching faculty to 15.

the University of Tennessee. He has writ-

ten many legal articles, including two accepted for publication in the 1977-78 academic year by the Case-Western Reserve Law Review and Wake Forest Law Review. His wife, Carol, is from

Kansas City.

students about their various legal careers. The program was a great sue路

cess and the law school is grateful to all panelists.

The Law School Committee of the Arkansas Bar Association will visit the law school on Friday, November 4, and

will be the special guests at a reception and dinner on the UALR campus that evening. The committee will visit law

school classes, and will meet with the faculty, administration, and members of

the student body. The membership of the committee consists of the eight imme-

Fenton Adams, formerly Assistant Dean in charge of the law school when it was the Little Rock Division of the University of Arkansas School of Law at Fayetteville, has rejoined the faculty as a Professor of Law after seven years on

the faCUlty of the University of Mississippi Law School. A native of Reading, Pennsylvania, Adams has been a law teacher for 27 years. He began his career at the Dickinson College School of Law at Carlisle, Pennsylvania, where he received his law

degree. He was on the faculty of the little Rock Division from 1965 to 1970, the last four years as Assistant Dean, before going to the University of Mississippi. He has written several articles on the Uni-

form Commercial Code for law journals.

During the 1976-77 academic year he was a Visiting Professor of Law at Stet路 son University College of Law in St. Petersburg, Florida. Adams' wife, Eloise, works for the University of Arkansas Division of Continuing Education as a program specialist.

Jacqueline S. Wright, a 1973 graduate of the University of Oklahoma Law School, has been named Instructor in Law and is teaching the freshman legal research, writing, and advocacy course.

She has been in the general practice of law at Norman, Oklahoma, and in 197677 was law clerk to Associate Justice John A. Fogleman of the Supreme Court of Arkansas. Mrs. Wright is the former Jacqueline Stucker of Helena and is the wife of Dr. Robert Ross Wright.

Donaghey Distinguished Professor of Law at the UALR Law School. She has a bachelor's degree in journalism from the

UA at Fayetteville. The Wrights have three children.

New. Brtef.

Dean Walsh was the speaker for the Pulaski County Bar Luncheon meeting of October 14. His discussion focused on the expanded law school program, which now includes a full-time day division. He also showed color slides of the Old Federal Building, the renovation of which is nearing completion. The Dean

is availabte to speak to any local bar interested in learning about the development of legal education at UALR. From September 27 to October 1, Dean Walsh was part of a four-person team which inspected the University of South Dakota School of Law on behalf of the Accreditation Committee and Council on Legat Education of the American L. Lynn Hogue, a 1974 graduate of the Duke University School of Law at Durham, N.C., has been named an Assistant Professor of Law. From 1974 to 1976, Hogue taught public law and government at the University of North Carolina at Chapel Hill and counseled

Bar Association. The inspection was

government attorneys as part of the UNC

part of the normal reaccreditation process, and other members of the team were Dean Robert Sullivan of the University of Montana School of Law, Professor Donald Garbrecht. Law Librarian at the University of Maine School of Law, and Robert Dahl, a member of the ABA House of Delegates from North Dakota.

Institute of Government. He was a

A placement panel consisting of Irene

Visiting Professor of Law at the University of Detroit last spring. A native of lit-

Barnes, Elizabeth Brooks, Harley Cox, Louis Epley, Sam Perroni, Woodson Walker and Steve Watson, presented a program on September 26 to inform law

and

conducted

seminars

for

local

tle Rock, Hogue was reared at Kansas

City. He has a doctorate in English from

diate past presidents of the Arkansas Bar: Paul B. Young, Henry Woods, James B. Sharp, Robert L. Jones, Jr., Herschel Friday, Jack Deacon, Robert C. Compton, and James E. West.

The University of Arkansas Law Journal, Volume I, No.1, is scheduled for pUbtication in February, 1978. This first issue will include the first annual survey of Arkansas law, which is an overview of developments in various fields of law in

the state. The student editorial board is as follows: Steve Jones, Editor路in-Ghief; Diane Mackey, Executive Editor; Cynthia Dodge, Casenotes Editor; Andree Roaf, Articles Editor; Will Feland, Survey Editor; Victra Fewell, Research Editor.

Faculty Not. Professor Robert R. Wri9ht has been elected Chairman of the Governor's Commission on the Uniform Probate

Code. On October 6 Professor Wright lectured on "Wills: Execution and Rules

of Construction" at the Southern Conference on the Uniform Probate Code, held at Vanderbilt Law School. He also lectured at the Fall Le9allnstitute held in September on "Probatin9 of Blackacre".

Professor Frederic K. Spies will teach during the spring semester a course in

Law and Psychiatry to be offered to residents in psychiatry at the University of Arkansas Medical Center and to senior

law students at UALR. The 1977 Cumulative Supplement to Professor Fred W. Peel's CoMoIId.ted

lex Retu,.. is now available. Professor Peel spoke on July 15 at the American Gas Association-Edison Electric Institute Tax Seminar in Chicago. On July 29 in St. Louis he participated with Secretary of Treasury Michael Blumenthal and other Treasury officials in a roundtable discussion on tax revision proposals.

Professor Robert H. Marquis has returned to the School of Law after a oneyear leave of absence, during which he served as a consultant to TVA.

Professor James W. Murphy will be on leave from Spring, 1978 until Summer, 1979. He will teach at a law school in California. ~

January 1978IArkansas Lawyer/48

L

lAW SCHOOL NEWS Assistant Dean James K. Miller Associate Dean Susan Webber

â&#x20AC;˘ SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETTEVILLE A Careers Seminar, sponsored by the Young Lawyer's Section of the Ar1<ansas Bar, the Student JUdicial Seminar Series, and Phi Alpha Delta Law Fraternity, was held at Law School on October 14. The objective of the program was to provide law students with career information from young lawyers who have been involved in various aspects of the practice of law. Speakers were James M. Dunn of Fort Smith, Susan McCain and Tom Overbey of Little Rock and William Reed of England. Harry Truman Moore of Paragou Id was program coordinator for the YLS, and Lee Hinson, Chairman of the Student Judicial Seminar Series. served as moderator.

Dean Wylie Davis addressed the Sebastian County Bar Association on October 3. On October 6-8, he chaired a meeting of the Multistate Bar Exam Committee on Contracts, held at St. Louis. In July and August, 1977, Dean Davis taught Admiralty at the University of Georgia School of Law. Dr. Robert A. Leflar addressed an Appellate Court Administration seminar held at San Francisco on October 24.

The seminar was presented by the Institute for Court Management.

On October 20, Phi Alpha Delta Law Fraternity's Professional Activities Committee sponsored a program concerning the Federal Bureau of Investigation.

Guest speaker was Henry Tuck, special agent and legal advisor to the Ar1<ansas Regional Office of the FBI. Professor Morton Gitelman was a speaker at an October 20 program sponsored by the University of Ar1<ansas Chapter of the American Association of University Professors. The subject of the program was "The Potential Legal Liability of Professors."

Professor Howard Brill participated in a conference sponsored by the Center for Law and Religious Freedom and the Christian Legal Society September 8-11 in Colorado Springs. Conference topics included the First Amendment and Current Problems in Church-State Relations.

48/Ar1<ansas Lawyer/January 1978

Black American Law Student Association officers for 1977-78 are Wendell Griffin of Delight, President; Ar1<ie Byrd of Little Rock, Vice President; Gladys Marie Wilson of Jonesboro, Secretary and Wardell Henley of Fort Smith, Treasurer.

New faCUlty members for 1977-78 include Linda B. Brown, Matthew Horan, and William J. Rands, legal writing lecturers, and Karen Stitsworth, assistant librarian.

Ms. Brown received her B.A. degree from Tulsa University; an M.A. degree from the University of Nebraska; her J.D. degree from the University of Tulsa Law School, and an LL.M. from Columbia University. To receive her LL.M., she completed a major research project on the role and function of the U.S. Supreme Court in constitutional cases.

Mr. Horan received his B.A. degree from the University of Ar1<ansas at Fayetteville in 1973. He received his J.D.

degree from Harvard University in 1976.

While an undergraduate, he edited the Grapevine, a weekly off-campus newspaper, and Preview, a literary magazine. He was recently named an "Outstanding Young Man of America."

He has been admitted to the Ar1<ansas Bar. Ms. Stitsworth received her B.S.E. degree from the University of Ar1<ansas at Fayetteville, where she was an honors graduate and a member of Kappa Delta Pi, honorary educational fraternity. She received her J.D. degree from the UAF School of Law in 1977. She was recently admitted to the Ar1<ansas Bar. Mr. Rands received his B.A. degree from Centenary College, and received his J.D. degree from Tulane University School of Law in 1973. At Tulane, he was Assistant Editor of the Law Review and was a member of the Order of the Coif.

He was most recently associated with the New Orleans law firm of Hurley, McNulty and Stakelum.

NEW FACULTY MEMBERS. UNIVERSITY OF ARKANSAS, SCHOOL OF LAW, FAVETTEVIUE 19n-78 ft to Right) - Tom RobIr-., Molt Horon, _ . p _ , .10.. Chipm.., Bob F._ka. ft to Right) - Bob SterlIng, K. . . - . Linde 8iIR_.

_ng - (....

_eel-(..

8_

case be placed on the argument calendar.

Cases are screened no-argument if: (1) the appeal is frivolous; (2) the appeal is clearly meritorious; (3) the dispositive issue or set 0; issues has recently been authoritatively decided; or (4) the facts are simple, and the determination of the appeal rests on the application of settled ru les of law.

A few stati51ics may help you understand the impact of this no-argument procedure on our ability to keep current Each active judge now sits from 32 to 35 days per year, spends 7 to 10 weeks preparing oral arguments, serves as lead jUdge on an administrative panel for 6 weeks. and sits occasionally as a District Judge. This leaves him with at most 25 weeks a year to prepare 70 to eo written opinions and to concur or dissent in 150 to 160 additional opinions. If each of the 276 no-argument appeals were argued, each judge would either have to sit an additional 4 weeks a year, leaving him only 21 weeks to prepare opinions, or in the alternative, parties would be faced with an additional 5 month delay from the time their case is fully briefed until it is finally submitted. In our opinion, neither alternative is viable.

We are convinced that there is no injustice in disposing of certain cases without oral argument. I might add that we liberally grant motions to permit oral argument where either parry objects to the no-argument disposition.

The second step we have taken to more effectively manage our case load is 10 adopt various procedures to expedite the submission of appeals. The steps taken include: (1) The appointment of Wayne Buckner as Appeals Expediter. His job is to follow (Nary appeal from the time it is filed to the time it is submitted for disposition by a hearing panel. He is instructed to contact attorneys in all criminal cases, and most civil cases, immediately after filing of notice of appeal and to arrange a briefing schedule with them. He is also instructed to work with the court reporters and clerks of the District Courts to insure that transcripts and appendices are prepared promplly.

(2) In addition, we have adopted a plan for eXpediting appeals of criminal cases taking three days or less to try - a plan that is unique to this Circuit. Over 75% of the criminal cases tried at the District Court level fall into this category. Under this plan, the clerk of the District Court must order a transcript within 24 hours after the notice of appeal is filed. This transcript must be filed with our Court within 20 days of that date. Appellant's brief is due 28 days after the date the record is filed with this Court. Appellee's brief is due 21 days later. Extensions

from this schedule are granted only under the most unusual circumstances.

These criminal cases are screened initially by our senior Staff Law Clerk, in accordance with the procedures outlined above.

(3) We affirm certain cases by order.

This is done to save the time it wou Id otherwise take to write an opinion. However, we affirm by order only in a limited number of cases. If we determine that one or more of the following circumstances exists and is dispositive of the case, and that an opinion would have no precedential value, we enter an order pursuant to our Local Rule 14. Among the circumstances justifying an affirmance by order are: (a) the judgment of the District Court is based on findings of facl which are not clearly erroneous; (b) the evidence in support of the jury verdict is not insufficient: (c) the order of an administrative agency is supported by substantial evidence on the record as a whole; and (d) no error of law appears.

(4) Finally, we realize that a delayed decision on appeal may seriously affect certain litigants. For this reason, we do expedite the argument and disposition of certain appeals at the parties' request upon good cause shown.

These are the steps we have taken in recent years to cope with our growing caseload. Even with these procedures we are concerned about our ability to remain current in the near future. The Judicial Council at its last meeting authorized a program of preargument settlement conferences. I am sure all of you are aware that this procedure is used frequently in federal and state courts throughout the Nation. Indeed,

continued from page 36 yers, was guest speaker at the Kansas City Bar Association's installation of officers. Beryl Anthonr, EI Dorado, was speaker at a meeting of the South Arkansas Development Council. Will.... Brlzll, Conway, attended a personal injury course held at Hastings in which instructors included SId McMlllh, E'-lJ_ T, !lor, H....ry Wood', and WIno_ DrummOllel. At a recent Lions Club meeting, Johll Belew, Batesville, was guest speaker. PhJtll. JohllOOll, Mountain

many of you may have participated in such conferences.

Senior Judge Charies Matthes has agreed to undertake the program for the Eighth Circuit. He will begin with diversity cases where a money judgment has been granted. We anticipate that the appellant's attorney will be required to file with the notice of appeal, or shortly thereafter, a docketing statement, which will include a statement of issues. The appellee's attorney will then file a response to appellant's statement.

Before briefs are filed, attorneys for all parties, and in some cases the parties themselves, will be asked to attend a conference conducted by Judge Matthes. At that conference, the parties will discuss the possibility of settlement. If settlement is not possible, the attorneys will be asked to attempt to narrow the issues, and to eliminate portions of the record which need not be considered by the Court on appeal. All discussions will be completely confidential; participation, at least initially, will be voluntary; and the Senior Circuit Judge will not communicate any of his knOWledge of the case to the hearing panel, should his settlement attempts fail. We welcome any suggestions which you might have on the format of this program.

In closing, I want to assure you that, while we have made a firm commitment to keep current with our caseload, we have a much deeper commitment to decide cases fairly, and with the full amount of attention necessary to do so.

We seek your cooperation in helping us fulfill both commitments. ~

Home, spoI<e to a youth group at the First United Methodi51 Church at a function called the "Fifth Quarter" which followed a local football game. Crawford County Bar Assn. has elected new officers: Cart K. Creekmore, Jr., President; Robert Marquette, Vice-President; and Steven G. Peer, Sec.-Treasurer. John Pittman, West Helena, received a certificate of appreciation from the Arkansas Judicial Council for his work in arranging its conference in October. Goyte K. Ford, Mount Ida, was honored by the Ouachita Regional Counseling and Mental Health Center. Judge Ted P. eo...y, Berryville; Judge Wlllllm H, Enflekf, Bentonville: and Gary Kennan, Bentonville, were panelists at a program sponsored by the Berryville Business and Professional Womens Club. ~

January 1978/Arkansas Lawyer/47

~

1111

JURIS DICTUM

by C. R. Huie Executive Secretary, Judicial Department

Recently Judge Gerald W. Heeney of the U.S. Court of Appeals for the Eighth Circuit /Idd,...eed the Eighth Circuit Judicia' Conference on the subject of appeals proce•• and certain timely datldlc. effecting appeals In thl. Jurl8dlctlon. Knowing the readers' Interest In such matters, we are publl.hlng Judge Heaney's remarlc. In this Juris Dictum.

U.S. COURT OF APPEALS FOR THE EIGHTH CIRCUIT by: The Honorable Gerald W. Heaney U.S. Circuit Juclge When I came on the bench ten years ago, this Court had eight active judges.

In that year 405 appeals were docketed, 85 of those were criminal cases, 320 were civil. Although we have the same number of judges today, 1,125 appeals were docketed this year. Of these, 255 were criminal cases. Even with this almost three-fold increase in the number of appeals, we remain current. We will end this year with less than 500 pending cases, a figure that is lower by percentage and by number of pending cases per judge than any other Circuit. We are among the lowest Circuits in terms of cases pending 90 days after argument and submission. In fiscal 1976, only 12 cases were stili pending 90 days after submission and of these only one case was more than a year old. Finally, our oral argument calendar is current; by that I mean cases that are fully briefed are promptly scheduled for oral argument. We fully expect the upward trend in filings to continue, and estimate that 1,200 cases will be docketed next year, and approximately 1,500 by 1980.

The Senate has passed a bill creating 148 new judgeships. Nine of these are district judgeships within the Eighth Cir· cuit: 2 for the Eastern Di51rict of Arkansas; 1 for the Southern Di51rict of Iowa; 1 for the Eastern District of Missouri; 2 for the Western District of Missouri; 1 for the District of South Dakota; and 1 permanent and 1 temporary judgeship for the District of Minnesota. The bill approved by a subcommitee of the House Judiciary Committee would add 1 judge in the Eastern District of Arkansas, 1 in the Western District of Missouri, and 1 permanent judge in the District of Minnesota. It would add no judges in the Southern District of Iowa. Hopefully, new judges will be appointed to fill these pos· 48/Arkansas Lawyer/January 1978

itions before January 1, 1978. Once these positions are filled, our caseload is likely to increase still further as appeals from decisions of these new judges reach our Court. While the bill passed by the Senate creates one new judgeship for the Eighth Circuit. the House bill does not. Even if the Senate bill passes, and another judge is added to our Cir· cuit, that alone will not enable us to keep up with our increasing case load. Therefore, we must continue to experiment with new methods for expeditiously and efficiently disposing of appeals without sacrificing the quality of our decision making.

I would like, now, to outline several 51eps we have adopted for handling appeals, -and other measures we are considering for the future. The first and mo51 important of those is our screening pr<r cedure.

In 1976, we disposed of 1001 appeals.

We could not have done 90 without our procedure for screening certain cases for disposition without oral argument.

We decided 276 or 28% of the cases filed without oral argument 66 of these were direct criminal appeals, 116 were post-conviction appeals, 21 were civil appeals where the United States was a party, 9 were civil appeals where an admini51rative agency was a party, 46 were private civil appeals, and 18 were original actions. Of the 276 appeals disposed of without oral argument 25 were reversed. We first implemented a formal screening procedure in 1970, creating three classifications of cases: those allowed 3) minutes oral argument per side, those allowed 15 minutes, and those allowed no oral argument. Before 1976, all screening was done by the judges. In an effort to free judicial time for case work, we adopted a new screen·

ing procedure in 1976. A judge now par· ticipates in the screening process only after an initial decision is made that the case be screened for no argument. Once this initial no argument decision is made, three judges must then agree that the case is suitable for disposition without oral argument, before argument is finally denied.

But this is only an overvi8'wY of our current screening procedures. Let me explain them in greater detail. Our Clerk of Court, Bob Tucker, an able and experienced lawyer and administrator, performs the initial screening of all civil cases and of criminal cases where trial took more than 3 days to complete. The Senior Staff Law Clerk, a career law clerk, permanently based at the Court's headquarters in St. Louis, performs the initial screening of criminal cases where the trial took 3 days or less.

A case may be screened for 20 or 3l minutes argument per side, or for di~ position without oral argument. If a case is screened for argument, it is placed on the earliest possible calendar. A hearing panel of judges may remove a case from the argument calendar by unanimous action.

If a case is initially screened for noargument disposition, it is forwarded immediately to one of the judges for his approval of the no-argument designation. If he does not concur, he informs the Clerk, who places the case on the earliest possible calendar. If he concurs, he informs the Clerk, who in turn informs the parties of the no-argument classification. The Judge who concurs with the no-argument classification is then responsible for preparing an opinion and forwarding it to the two other judges on the screening panel for their concur· rence. Either judge may ask that the

Dan M. Burge Maurice Cathey James T. Dyke Herschel H. Friday Charles R. Garner John P. Gill Oren Harris Bill R. Holloway Jack Holt, Jr. Gaines N. Houston Clint Huey Randall W. Ishmael Boyce R. Love Pat Mehaffy N. Dale Price Louis Rosen E. L. Schieffler J. L. Shaver Douglas O. Smith, Jr. Berl S. Smith William J. Smith Neva B. Talley C. R. Warner, Jr. Richard A. Williams Edwerd L. Wright SCholerehip Fund The law firm of McMath, Leatherman & Woods, P.A. has started a scholarship fund in honor of the late Edward L. Wright with a contribution of $250 to the Arkansas Bar Foundation. William R. Wilson has added a contribution of $143. All contributions of the Foundation in Mr. Wright's memory are being covered into this scholarship fund. The goal is $5000. This will set up perpetual scholarships in the Foundation's scholarship program for the Law School at Fayetteville and Little Rock. Contributions to the Edward L. Wright Scholarship Fund should be made to the Arkansas Bar Foundation, 400 West Markham, little Rock, Arkansas 72201.

Additional contributors are: William S. Arnold Maurice Cathey Davidson, Plastiras & Horne, Ltd. Oscar Fendler John A. Fogleman Ruth Lindsey Donald W. McKay Dick Moore, Jr. Louis L. Ramsay, Jr. U. M. Rose Louis Rosen James B. Sharp J. L. Shaver John Mac Smith David Solomon N_ Fellow. section 3, Article II of the Foundation's By-Laws provides:

"The Board of Directors of the Arkansas Bar Foundation may designate as a Fellow of the Foundation any person who has contributed outstanding service to the Arkansas Bar Foundation and any Fellow so designated shall have all the rights and privileges of membership."

One required service is the contribution of $1000 to the Foundation.

Fellows are recognized by a parchment certificate, by membership in the Foundation, and by their pictures in the Hall of Fellows at the Arkansas Bar Center. In the October 1977 issue of The Artlen... Lewyer, we published a list of the Fellows.

Since then, the following have been so designated: Julius C. Acchione Edgar E. Bethell Douglas Bradley

W. Dane Clay Oliver M. Clegg John N. Harkey William H. Hodge Kaneaster Hodges, Jr. F. J. Howell, Jr. Edwin B. Keith Harold L. King Frank Lady Fred Livingston Arthur R. Macom Richard L. Martin James W. Moore Fred MacDonald James A. McLarty, III Richard A. Reid Alex G. Sanderson Don M. Schnipper Griffin Smith Cecil A. Tedder, Jr. Walls Trimble William R. Wilson

" ARKANSAS BAR FOUNDATION LEGAL ESSAY CONTEST

The First Annual Arkansas Bar Foundation Legal Essay Competition will begin November 15, 19n, and awards for the winning essays will be presented by the Arkansas Bar Foundation at the annual Bar Foundation meeting in June

of 1978.

All entries must be in the hands of the Bar Foundation at the Law Center in

Little Rock no later than April 15, 1978.

The competition is open to all persons who submit an essay in proper form.

The essay should be in proper form for publication either in The Arkansas Lawyer or the Arkansas Law Review. There is no maximum or minimum number of

words or pages. The styfe and form shall be lett to the individual authors.

The topic for the essay for the year 19n-78 shall be "Should Ark. . . . Haw Sep.rate Clreu" and ChancelY Court.". A cash award of $150, plus a certificate of merit will be awarded to the best paper written for the pro side of the question, as well as the best paper written for the opposite or con side.

All entries must be mailed to the Arkansas Law Center, 400 West Markham Street, Little Rock, Arkansas 72201, so that they are in the hands of the Bar Foundation no later than April 15, 1978. Each entry should be accompanied by a cover letter giving the name, address, telephone number and occupation of the entrant. All papers submitted shall become the property of the Arkansas Bar Foundation and manuscripts will not be returned. The winners will be noti-

lied in writing by the Foundation and will receive their awards at Hot Springs at the annual Bar Foundation Convention.

Persons from all walks of life are urged to enter the competition and submit essays on this most topical question concerning our entire system of justice in Arkansas. Whether you are a lawyer, teacher, law student, newspaper writer, housewife or businessman, please submit your entries so that we can have a broad scope of opinions from across the state.

January 1978/Arkansas Lawyer/45

ARKANSAS

BAR fOUNDATION

by John P. Gill Chairman

WHAT HAS THE ARKANSAS BAR FOUNDATION DONE FOR YOU LATELY?

In pursuit of the Foundation's goals of improving jurisprudence, many Foundation programs are underway.

Legal Writing "Old" lawyers will fondly remember Fayetteville in the Fall with football games and legal seminars.

Take heart - it's coming back again. Don't miss the:

SCRIVENERS' SYMPOSIUM WATERMAN HALL November 18, 1977, 1:00 p.m.

HOMECOMING ARKANSAS v. SMU The program for this seminar is absolutely outstanding. Mr. Justice George Rose Smith, Arkansas' foremost authority on brief-writing, will be the first speaker. He will be joined by one of the most accomplished masters of the English language, Chancellor Tom F. Butt of Fayetteville, and three distinguished members of the Fayetteville law faculty: W. David Newbern, Milton Copeland and Richard B. Atkinson.

Other than oral advocacy, the lawyer's traditional expertise is legal writing. One purpose of the Arkansas Bar Foundation is to encourage legal writing and cause the publication of literary works on legal su t>jects. Since good legal writing is a "bread and butter" subject for Arkansas lawyers, no lawyer should miss this legal writing seminar which is designed to encourage lawyers to write better briefs and IeoW/Arkansas Lawyer/January 1978

gal documents, as well as articles for publication.

And all of this is free. It is presented as a token of appreciation to Arkansas lawyers who have contrit>uted so generously to the work of the Arkansas Bar Foundation.

Courtroom Standard.

A very capable committee of attorneys and judges who have had actual experience in remodeling courtrooms will be led by Sandy Hendrick in developing one of the most important projects for Arkansas jurisprudence ever undertaken, namely the development of minimum courtroom standards. In the near future, this committee will make its report on minimum standards for Arkansas courtrooms which will cover everylhing from chalk availability to decent jury rooms. Once these standards have been developed, every local bar association in the state, and indeed every local lawyer, will be able to evaluate local courtroom facilities and more importantly have a standard by which local governments can make improvements to the justice system.

$150 Writing Award.

The Foundation's first awards for writing about the law will be presented at the close of this Bar year.

A significant feature of this award is that it is open to all persons, lawyers and laymen alike, in an effort to stimulate interest in the law and en-

courage the publication of good articles about the law.

Public Awareness of the Law Elsewhere in this issue is a handy idea: "Slick" copies of articles prepared by the Foundation's Public Information Committee that may be cut out for publication in local newspapers. All the lawyer has to do is cut out and deliver to the paper. The Foundation and your local newspaper do the rest.

What Have You Done Lately For The Arkan... Bar Foundation Each Arkansas lawyer will receive, shortly, a memorial card to place in his desk. At Christmas, or on the death of a lawyer, or any other time you feel like making a gift to a lawyer or to his memory, pUll out the memorial card, attach a check and mail it to the Foundation.

This is only one of a dozen ways in which you may provide money to the Foundation to continue its work for jurisprudence and the legal profession.

New Sustaining Members Section 4, Article II, Foundation's By-Laws states that "Foundation members are eligible for Sustaining Membership upon contribution of at least $50 per year." Each is recognized by a certificate and a card. In the October 1977 issue of The Arkan... Lawyer, we published a list of Sustaining Members. Since then, the following have joined this distinguished group: -

Clay. the new Arkansas Wills & Trusts System is going to be a great publication! The Colonel concurs.

Richard, the Midyear Meeting will be the perfect forum for discussing the new System! The Arkansas Bar Association has another winner!!!

ARKANSAS WILLs & TRUSTS SYSTEM

CtiVAS

MIDYEAR MEETING JANUARY 19-20, 1978 CAMELOT INN, LITTLE ROCK

ESTATE PLANNING INSTITUTE ARKANSAS WILLS & TRUSTS SYSTEM (Third in a series of System-Orientated presentations following the Corporation System and the Probate System.)

January 1978/Arkansas Lawyer/43

Copyright Update. , ., continued from page 41 original creations, and the creator 01 the wor1< will retain the copyright unless there is an express transfer of the copyright interest.' This has the advantage of making it more difficult lor artists to selt possibly valuable rights lor a pittance, but also presents potential problems in ascertaining the authorship of a discovered wor1< of art in order that the copyright ownership can be determined.

Also in the way of protection for creators of wor1<s of art is the modification of the "made for hire" provisions 01 the copyright law. The basic principle that an employer is regarded as the author 01 a wor1< and will have ownership of the copyright is retained. However, there are

restrictions in the new law as to when the "made lor hire" principle wilt apply.

The act provides a wor1< is "made lor hire" when the wor1< is "prepared by an employee within the scope of his or her employment" or "specificalty ordered or commissioned", '0 The law obviously intends that publishers may not acquire copyright Interests on the "made for hire" principle simply by stating in a

If these attempts at protecting the creative artist against his usual lack of sharp business judgement are successful, they will be a substantial contribution to greater equity and justice in the copyright field,

renn 01 eop"lghl By now the reader has probably thought to question whether the old term 01 copyr:ght lor 28 years with another 28 years renewal has been changed by the new law. Would that he hadn't. The at>surd complication of the new law 85 respects the term of copyright seems grossly unnecessary. It must suffice ,to say that there are different terms for works created on or after January 1, 1978, and those created before; also for deceased authors, unpublished wor1<s and for pseudonymous and "for hire" . wor1<s. It really is a mess.

Briefly, and somewhat oversimply, for wor1<s first created alter 1977 the term of copyright will be the life of the author plus 50 years, owners 01 existing statutory copyrights will get an extra 19 years, and the worst case for existing common law copyright, assuming it later is published by the author, would be an expiration of December 31, 2027.

contract with a writer that the contract Is an employment contract and that all wor1<s he creates wilt be "made for hire".

It remains to be seen if these provisions will represent an insurmountable obstacle for the publishing companies' ingenious attorneys.

Conclualon Perhaps this would be a thought to close on. If there is an area 01 the law in which you feel that you are somewhat of a specialist, Heaven forbid that Congress should take it upon itself to "relorm" the law, or if they do, may they

take forever to do it. More seriously, the new copyright act gives promise 01 being one of the better concoctions our lawmakers have bestowed on us. More than a little credit is due our esteemed Senator McClellan lor plowing a straight (and long) furrow in this endeavor.

1. "Some Intelligence on IntelleclUai Property", AIbnMI ~ , July 1974, ~ 120.

2. CopyrIght Act of 1918; 1102. IubIect INtW 011 copyrtghI: In ...,..

(8) Copyright protection IU~ in IICCOl'dance w1tt1 ItlIs btllt, In original wortul oI.uthonltlip fbIed WI." ~ bill medium of expreaslon. rw:NI known 0( . . . . dlMttopId. from which !hey can ba pl!lroIiYed, reprocIuoecI. or CJChwWI" communicaled. .. !her direclty or Wilt! m. eid 01 e

meet..

Of

dlMc:e. WOl1ts 01 eutl'lorttlip lndude . .

IoIlowino~

(1) '"--Y WOIb: (2) muMcaJ 'M)rka, including any axompenylng worda; (3) dreme,ic works. Including eny eccompeny

music;

end choreographic work.: (5) p1c1orial. graphic:. lind aculptutal work.: ..,) motlon pictu~ lind othIIr ~ 'M)rk~ end IOlJnd teCCIrdingI. (b) In no c::-. does ~ proteetion tor WI ongmal work 01 eultuship ..~ 10 any ~ proc:eduN. ~ aysum. IMltlod 01 opemion, concIIJIt. princlpIe. Of dieco楼wy. ~ 01 the Iorm In \IlltIich it iii described, ~ -'-led., Of embodied in IUCh (4) pentommes

en

3.

4.

S. 6.

7.

It 9.

10.

......

17 17 11 17 17 17 11 11

U.s.C. USC. US.C. U.s.C. U.s.C. USC U.s.C USC

"07 lUll 1110 11111, 115. 116, 118 "'05. 406 WOlS(lI)

120'2 1101

(

~o

~

Midyear Meeting Camelot Inn, Little Rock January 19-20, 1978

~~~~~~~~N~:a:tural

Resources Law Institute (formerly Oil & Gas Institute) Artington Hotel, Hot Springs February 23-25, 1978

Labor Law seminar Camelot Inn, Little Rock March 16-17, 1978 Wor1<ers' Compensation Institute Camelot Inn, Little Rock March 24-25, 1978 Annual Meeting Arlington Hotel, Hot Springs June 7.13, 1978 Fall Legal Institute Camelot Inn, Little Rock September 14路15, 1978 G/Ar1<ensas Lawyer/January 1978

ARKANSAS BAR ASSOCIATION

The typewriter of the Ar1<ansas Bar Foundation is ready lor the "scrap heap". It has been suggested that an Arkansas lawyer or law firm, having switched to a newer word-processing system, may have an IBM Selectric typewriter in good condition to give the foundation. We use various letter ball-heads for the IBM lIeIeclrlc. Such a gilt would be tax-Iree, etc. Kindly contact the Ar1<ansas Bar Foundation, 400 West Mar1<ham, Little Rock, Ar1<ansas 72201. Tel. No. 37~.

common law copyright Instead he must protect his rights by filing an application for registration of his unpublished wor1<."

The area of federal preemption is thus greatly expanded. This federal registration need not be obtained prior to an infringement, but if it is not obtained prior

single radio receiver, (6) pertormance of musical wor1<s at non-profit agricultural fairs, (7) perlormances in connection with promoting sales of sheet music or

whereas certain types of wor1<s did not require a date under the 1909 act.

Regardless of the more lenient attitude of the new law, .uthera Iilould atlll be lIlIvlaad to mark tM copyright notice on thalr work .a tM moat Important atap In tM copyright protllCtlon

phonorecords, (8) certain transmission

procedure. There is no assurance that

to an infringement. the author loses his

of pertormances for handicapped persons. S There are other detailed modifications

the administration of the new law will be as lenient as it appears that it should be,

supplemental remedies of statutory damages and attorneys' fees.

While it cannot be determined in ad-

instate his right as to such pertormances by written objection.), (5) background music in a public place taken from a

in respect to cable television, licenses

for production of phonorecords, royalty for jukeboxes, and public broadcasting.

In general, a compulsory licensing approach on either a statutory fee or arbitrated fee basis is prescribed for these

areas.6 Procedu...

Under the previous law, tM lingle _

Import. .t matter In obtaining

copyright protection waa to place an approprlata copyright notlce on tM work indicating an intent to claim copy路 right. This has not changed under the new law. The old law together with its judicial interpretation contained some of the most hypertechnical requirements and awesome pitfalls that one would expect to find in any area of the law. Improper placement of the copyright notice in a book or on a map or an error in the notice itself might result in total loss of all copyright protection. Furthermore, the publication or distribution of wor1<s without any copyright notice was almost surely fatal even though the number of wor1<s SO distributed was relatively small.

The new law seeks substantially to reduce the hazards to the author or publisher where there is slight impr.... cision in carrying out the notice reqUirements of the law. The location of the notice will be deemed acceptable if it is calculated to give reasonable notice.

Even the omission of notice from a substantial number of copies can be corrected in most cases under the new law.7 The new law, however, requires the

date in the notice for all types of wor1<s,

and in any case the new law does not excuse an intentional omission of copy-

right notice.

In regard to filing an application for registration of copyright, the changes of the new law are relatively minor. The most important change is the fact that registration is permitted, and in fact will

be reqUired, for protection of rights in unpublished works which were previous-

ly protected under common law copyright. see the discussion below under Common Law Copyright.

RamlIlIIea The remedies under the Copyright Act have always been relatively effective, compared for example with remedies under the patent statutes. While there are small and important changes in the remedies available to the copyright owner, his favorable position is largely preserved.

The new law does make registration

within 3 months of

publication

a

requisite to preserve certain supplemen-

tal remedies such as statutory damages and attorneys' fees. eornn- Law Copyright 0 ... of tM _Important changes In the new law la tM _tanaIon of atatutory copyright to coyar unpub..- worka 01 all aorta. Previously, unpublished wor1<s covered by common law copyright were only copyrightable in a limited area, chiefly musical compositions.

Henceforth, even if a work is not

published by the author, he will not be able to proceed against an infringer in a state court action for infringement of

vance

how

this

substantial

change

bringing unpublished wor1<s under statutory copyright will wor1< out in practice, it would seem to have promise of im-

proved justice and efficiency. Certainly, advising clients will be much simpler when you do not have to explain to them that there is no way that they can protect their book or poem under the copyright law without first publishing it. Clients simply could not understand that an unpublished wor1< was not copyrightable.

Perhaps they knew what the law should be all along, and it was only the Congress, the Bar, and the Courts that were slow in working it out

Rights 01 Attl8la In several aspects the new law enlarges the rights of the actual creator of artistic works. One such enlargement represents a radical change in the

existing law. (This change was perhaps foreshadowed by a similar provision in the law of California respecting common

law copyrights.) Traditionally, when the creator of an artistic work, especially a painting, sculpture or similar work, sold the original creation and there was no express provision regarding the owner-

ship of the copyright, the ownership of the copyright lollowed the ownership of the actual creation.

As might be expected, artists not infrequently found that they had transferred for a small sum a copyright Interest which turned out to be quite valuable.

The new law diametrically reverses the presumption with respect to transfer of continued on page 42

Robert R. Keegan attended Oklahoma State University and Oklahoma University Law School before moving to New York City where he graduated from New York University Law School in 1957. For the next sixteen years he practiced law in the patent and trademark specialties with a long established patent law finm in New York City. In 1973 he resigned as a partner of that finm to establish a practice in Fayetteville and was admitted to the Arkansas Bar in November 1973. He is a member of the State and Federal Bars of Arkansas and New York, the First, Second, Eighth and Tenth Circuits Courts of Appeal, the Court of Customs and Patent Appeals, the U.S. Patent Office, the Court of Claims and the U.S. Supreme Court. He taught a course in Patents and Copyrights at the University of Arkansas School of Law (Fayetteville) in the Fall of 1974 and presented a program on that subject to the Fall Legal Institute at Fayetteville in 1975.

January 1978/Ar1<ansas Lawyer/41

COPYRIGHT UPDATE

by Robert R. Keegan·

It Your Copyright Knowledge Is Minimal, Don't Worry, It Is Probably Superceded We will have a new and substantially different copyright law on January 1, 1978. Affempts at general revision of the copyright law or the patent law characteristically meet with great difficulty due to the complexity of the subject maffer and the many diverse interests affected.

While affempts at general revision of the patent law have bogged down over the last dozen years or SO, the copyright law revision has forged, or at least plodded, ahead. It became an accomplished fact in 1976 and for the most part will become .lMct... January 1, 1978. The law being replaced is of vintage 1909.

The big song hit copyrighted in 1909 was "Put on Your Old Gray Bonnet (With the

how the changes in the law will affect those precepts.

Subject. 01 Copyright Prolection

First of all, let us consider those things, "works", which may be the subject of copyright protection. The term "communication media" taken in its

broadest sense might be a fair description of the primary thrust of copyright protection. Put in another way, whatever might be construed to be a "writing" under the U.S. Constitution, Article 1, paragraph 8 is a potential subject for copyright. Not only is the written word protectable by copyright but also pictorial and graphic maffer of just about any

remembers that one.

It was thought that some highlights of the changes in the copyright law would be of interest to Arkansas lawyers. No doubt the Arkansas general practitioner does not need or want to know all about the copyright law, but hopefully he has some basic concepts of what copyright is about and would be interested in knowing if these basic concepts are still valid.

Perhaps some readers will even have gained information about copyright from a previous article in these pages by this writer'. Since only some basic precepts of copyright were mentioned there, it would be a good starting place to know

• Copyright

C

19n Robert R. Keegan

4O/Arkansas Lawyer/January 1978

A principal limitation of the rights of authors was the doctrine of "fair use" as

it was developed by the courts. The new act seeks to codify the doctrine of fair use by mentioning certain factors to be considered, namely (1) the character and purpose of use, (2) the type of copyrighted work, (3) the significance of the portion used in relation to the whole work, (4) the economic effect of the use on the author's work or the market for it.

Perhaps more significantly, certain practices are specifically mentioned as

description. In addition to hand-drawn

falling within the doctrine of fair use.

pictorial maffer, photographs are also protectable. As an extension of that. moving pictures and video tapes Bre pro-

Some examples are copies for classroom use inclUding multiple copies, literary criticism, comment, news reporting, scholarship and research. 3

tectable as are sound recordings.

Blue Ribbons On It)". Surely everyone

cIolng eomethlng ..Iatlng to hi. wort< a.. much m<He •• tenal..1y t..aled In the new eet than in the old.

SCUlptures are also protectable under copyright. An observant reader may have noted that in many cases protection is granted where the artistic merit is questionable. The above is by no means a complete list of the nature of things copyrightable, and in truth the scope of copyright protection is so broad that a complete detailed list would be difficult to compile. The Copyright Act of 1976 generally defines the subject of copyright in 11022 .

The new Copyright Act doea not ......",. any typ. 01 work from the .cope 01 copyright protection. In fact, the scope of works protectable is slightly enlarged in that choreographic works (and pantomimes) are fully protectable even if there is no "story" which is associated with the work.

It also is clear that the intent of the law is to make computer programs and data bases protectable. Substantial uncer-

tainty as to computer programs existed under the old law.

The Aulhof. Exelualve

Right.

Traditionally the authofs exclusive rights include not only the right to prevent another from making something but also a right to prevent him from doing something. Thus the composer of a symphony has rights respecting the reproduction of the score and also in the performance of the symphony by an or-

chestra. The Ilmltatlona on the authof.

••el...... right. boIh .. to milking or

Not quite squarely within the fair use doctrine but related to it is the library photocopying situation. Without going into detail, the new act makes it reason-

ably possible for a library to avoid copyright infringement liability but at the same time serve the needs of users with legitimate study or research objectives.

The library is obliged to display a copyright warning, and of course libraries are

not permiffed to systematically evade the copyright law any more than any other organization would be."

In the field of performance rights, the old act gave the author rights respecting "performance for profit". The interpreta-

lion of "for profit" has had a long and cloudy history, and its removal from the copyright act will occasion liffle mourning. In place of the "for profit" provision specific types of public performance activities are exempt from the author's

exclusionary rights in the '76 act. Some of these areas are (1) face-to-face teaching activities in non-profit institutions, (2) slightly more circumscribed teaching activities involving other than face-t~

face teaching, (3) performance of certain types of works in the course of religious services, (4) performances of certain works without commercial advantage and without payment. or if payment is charged, where the proceeds are for educational, religious or charitable purposes (The copyright owner may re-

AleLE NEWS

by Claibourne W. Patty, Jr. Executive Director Arkansas Institute of Continuing Legal Education

Record Number of Registrant. AU_ Fan Leg.1 II18IUuta And Prectice Skill.

eou....

Paid registration was 319 at the FALL LEGAL INSTITUTE and was 66 at the ANNUAL PRACTICE SKILLS COURSE. In addition to the paid registrants at each occasion were also registered the various speakers and Program Chairpersons, Judges, Law School Faculty and Law Students who are also Bar Association members.

Of Ihe evaluation forms distributed al each event. approximately 10% of those registered al the FALL LEGAL INSTITUTE and approximalely JJ% of those registered at the PRACTICE SKILLS COURSE responded. These were excellent responses in each case, and they established the strong and weak points of each seminar. At the FALL LEGAL iNSTITUTE. the "star" of the proceedings was the ARKANSAS PROBATE SYSTEM itsell. Also, favorably mentioned were the format of the program, the subject matter and the location. Less favorably mentioned were: the length of the program (two days could have been condensed into a day and a halO; lack of specific instruction as to the use and implementation of the SYSTEM; and the late starts, too long coffee breaks and a crowded meeting room. Generally, the Speakers were well received with approximately one-half of them voted outstanding on different evaluation forms, Hopefully. the less favorable elements will be eliminated by the arrangement of the MID-YEAR MEETING program.

The evaluation of the PRACTICE SKILLS COURSE was more generous.

Most of the Speakers. especially those who had participated in past years. were rated outstanding; and the format of using a "team-dialogue" approach in presentation of subjects with different points of view was rated far superior to having a single lecturer stand up !or ,a prolonged period of time (and thiS IS easier on the Speakers. too!), The new SUbject of LAW OFFICE MANAGEMENT, presented by Richard A. Williams, and the resurrected subjects of WORKMAN'S COMPENSATION and ETHICS AND FEES were very well re-

ceived and will be retained as a future part of the course program, The evaluations suggested that the ccurse could be improved by lengthening certain subjects which had run over their alloted times of one hour and by providing more handout material.

Long.hereman'. Act Compansation seml".r.

The MARITIME LAW COMMITTEE of the ARKANSAS BAR ASSOCIATION and AICLE will co-sponsor a one day seminar on the LONGSHOREMEN'S AND HARBOR WORKERS' COMPENSATION ACT (LHWCA) at the Worthen Bank Building auditorium. Little Rock, Arkansas, on December 9, 1977.

Gordan S. Rather, Jr., Chairman of the MARITIME LAW COMMITTEE and Program Chairman, emphasizes in the program and registration brochure that the purpose of the seminar is to familarize Arkansas Attomeys and their clients with the basic provisions of the LHWCA, in order to eliminate confusion between the applicability of the Federal law and ARKANSAS WORKMEN'S COMPENSATION taw. From the Claimanfs point of view, the LHWCA provides more generous compensation ,b~nefits to workers for disability due to Injury or employment-related occupational disease occuring on the navigable waters of the United States. such as the Mississippi, Arkansas and White Rivers, or in adjoining land areas used in loading and unloading vessels such as barges, From the Employers' point of view, the LHWCA imposes the responsibility of reporting accidents to the proper authority and for the payment of compensation and medical benefits occunng thereunder; and if the injury is not reported by the employer, no Iimifation period runs and the employer and compensation insurance carrier can be exposed to rather severe penalties, The Speakers are Marilyn Thompson, Assistant Deputy Commissioner in the Seventh Compensation District (La./Ark.) and Douglass M. Moragas, Claims Examiner in the Seventh Compensation District.

MId-Yaar M..ting The Mid-year Meeting to be held at the

Camelot Inn, Little Rock. Arkansas, January 19-20, 1978, will be structured around the ARKANSAS WILLS AND TRUSTS SYSTEM, authored by Robert P. Wilkins of Soulh Carolina and revised by Richard A, Williams for use by Arkansas Lawyers.

Registration and committee meetings will lake place during Thursday morning, January 19th, and lhe INSTITUTE part of the program will commence at 1:30 p,m. The Thursday. afterno~n program, chaired by Byron Eiseman, Will cover basic law and recent developments in the Estate Planning subjects of INTER-VIVOS GIFTS, MARITAL DEDUCTION PLANNING, DISPOSITION OF CLOSELY-HELD BUSINESSES and LIFE INSURANCE PLANNING. The Friday program, chaired by Dick Williams, will be structured around a panel including Bob Wilkins. The panel will cover ARKANSAS WILLS AND TRUSTS SYSTEM chapter and verse from 9:00 a.m. to 2:45 p.m. From 3:00 p.m. to 4:JJ p.m, the registrants will break up into four workshops which ~III cover a hypothetical Estate Planning problem. The workshop leaders will correlate the problem with the use of the SYSTEM, and questions can be more easily raised and answered in this sort of environment. It is anticipated that the format of the MID-YEAR MEETING Institute will correct the deficiencies of the FALL LEGAL INSTITUTE, that is: the program is condensed, the SYSTEM will be examined in detail, and the workshop will replace the atmosphere of a large "audience" with that of a true "seminar", Program. In Prog....

AICLE is working with the LABOR LAW COMMITTEE of the ARKANSAS BAR ASSOCIATION to present a LABOR LAW, DISCRIMINATION LAW and OSHA SEMINAR in Little Rock on March 16-17, 1978, More details will be available in the next issue of the ARKANSAS LAWYER, Also in preparation is a general and comprehensive survey to be ~ailed t? the Bar membership which Will permit considerabie feed-back as to the type of CLE programs preferred by the Bar membership.

f...-.

January 1978/Arkansas Lawyer!31

OYEZ • OYEZ

II ••

by Barbara Tarkington Membership Secretary

M.rg~t.

Ann Ch8pm.... has been named ArI<ansas' Outstanding Young Woman of the Year for 1977. D. .ld My.ra, Siloam Springs, has been appointed juvenile court referee to succeed Dougl..

WIl80n who now directs the Legal Services of Northwest Arkansas in Fayetteville. SUMn McC.In, Little Rock, has been named administration officer in the trust department of the First National Bank."'" K. Brldgforth has been named assistant resident counsel for Georgia-Pacific Corp at Crossett, Hoyt Thorn.., Heber Springs, attended the Sixth Annual Estate Planning in Depth Seminar at the University of Wisconsin. M.rjorle K.I, England, has been appointed deputy prosecuting attorney for the 17th judicial district. WII.... R. WII8On, Little Rock, will serve on the 19n-78 Board of Governors of the Association of Trial Lawyers of America.

Thorn•• B. Burt<. has been elected to the Board of Governors of the Fayetteville Savings & Loan Association. Edw.rd J. CUlllllngum, Mountain Home, is the Chairman of the Savings & Loan Section of the ArI<ansas Bar Association and J• . . - W. L.nce, Little Rock, is Vice Chairman and Secretary. ROIIIIId Burton, Conway, has been appointed juvenile referee of Faulkner' County.

Thorn. . Sptlrt<.. Fordyce; JolIn Elrod, Rison; ROIIIIId L. Boyer, Rogers; and J8..- S....... Jonesboro have been named to a new 7-mernber Rural Assessment Study Commission. WIIIIIII'II R. StrlngNllow, Little Rock, has been sworn in as director of the state Commerce Department. AI.... T..""" Batesville. has been sworn in as chairman of the Worl<men's Compensation Commission. Fr.nk B. Whitbeck, Little Rock, has been elected president of the American Foundation Life Insurance Company. W, P. R.I..." West Memphis, will assume duties as a second attorney for the Crittenden County Child Support Enforcement unit: A. Jan Thorn•• is serva/ArI<ansas Lawyer/January 1978

ing as its director. 88m HIgh8mIth, Batesville, is on the Executive Council of the American Bar Association YLD represenling Arkansas & Oklahoma. ....... Smith is regional attorney for Arkansas Social Services in Magnolia Don S. Smith has been appointed by President Carter to the new Federal Energy RegUlatory Commission. C. R. W......., Jr., Ft. Smith, has been elected treasurer of the American Land Development Association and Is president of Fairfield Communities, Inc. Justice EI8lj T. Roy, Little Rock, Judge JolIn L. And n, Helena, and Cu.... A. Brown, Little Rock have been selected as outstanding appellate judge, trial jUdge and trial lawyer, respectively, by ATLA for 1976-n. Ruth Bru.....n, Little Rock, attended the American Association of Law Librarians Convention held in Canada Judith Rogers, N. Little Rock, has been appointed juvenile court referee for Pulaski County succeeding B8lty C..,... CMry\ J. T...I, formerly with Legal Aid, has become an associate with Judith Rogers. Capt. And....

ZI.r, formerly of Pine Bluff, has opened a law office in Fayetteville. L.ny H.rtl1iI1d, Newport. has opened his own law office at 412 Third Street. SIoIn R.lnweter. Jr., Walnut Ridge, has announced the association of M.rt< W. Webb. P.trlcl. A. L.ngllon, a 19n graduate, has joined the law firm of Shaw & Shaw of Mena. RlIY"'ond W....., Little Rock, has opened his law office on the 17th floor of the First National Bldg.

GI'IlI B. Brown, formerly of Little Rock, has moved to Benton with offices at 501 N. Marl<et Street. Robert L. WII8On, formerty of Newport. has moved to Little Rock. Meredith C.t.... has joined the Friday, Eldridge & Clarl< law firm. S. Gr..... C...... has opened his law praclice with H. B. Stubbllfilld in the Worthen Bank Bldg. """-bI/1e Clinton is with the Wright. Lindsey & Jennings law firm. Rick A. a-p, formerly of Fayetteville, has moved his law office to West Fori<. JICk K......" a 19n graduate, has joined his brother, ",,-, for the practice of law in Magnolia. J• . . Cox has joined the law firm of Walters & Davis and will be worl<ing in the Green-

wood office. The 99 year old law firm 01 Reed & Reed, Heber Springs, has moved their offices to the Kelley Bldg. Lq J. Kennedy, III, a 19n graduate, has opened a law office in Forrest City located in the Ash Bldg. The law firm 01 Roe & Hunt has been formed in Rogers with RIII'IIOIIII Roe and GIClIQI HunL JI..- D. Slc*.. and a new associate Bob K. K.tlf, Mena, have opened a branch office at Cove, ArI<. edwin T. Pow... has become associated with D.vId O_on for the practice of law in Mountain Home. Keith V.ugun has joined the Jacksonville law firm of Rice & Batton. Monic. Dllllum is clerl<ing for Justice John Foglem.n. Mill. Mill.. has joined the Searcy law firm of Boyett & Morgan, P.A. ROIIIIId G. H..rll, a 19n graduate, has opened his law office in the White Bldg. in Clarl<sville. SpilZberg, Mitchell & Hays has announced the association of J _ E. McC"In, Jr. and Willi..... L. Owen to their firm. Rick SI!.... has joined the law firm of Bailey, Trimble & Pence. A new partnership has been formed in Searcy by Ed Blthu... and Robert Edw.rdl; Bethune & Edwards. Rlcurd C....." formerly of little Rock, has joined the N. Little Rock law firm of Wallace, Hilburn, Clay1on, Wilson & Hankins, Ltd. A Fayetteville law firm has changed its name to Putman, Davis, Bassett, Cox & Wright and announces that Wood80n W. Se_tt III has become an associate. Terry Klrkp.trlck, formerly with the Attorney General's office, is in Fayetteville with the Legal Services of Northwest Arkansas. Mike _ , Pocahontas, has joined the law firm of Wilson & Grider. ....... R. Cromwell is with the Legal Aid Bureau of Central ArI<ansas located in Pine Bluff. oem.... A. H.... a 19n graduate, is practicing with the Fayetteville law firm of Pearson & Woodruff. PhIllip A. R.Iey, a 19n graduate, is practicing in Pine Bluff with Coleman, Gantt, Ramsay & Cox. J.... Dick., and George GIeI80n have become associated with The Rose law firm. Willi.... B. Rowe is with Murphy Oil Corp, Legal Department. SId..., S. _.th, President of the International Academy of Trial Lawcontinued on page 47

EXECUTIVE COUNCIL NOTES November 12, 19n -

Pet"1on To Ark...... SUpreme Court L.wyer AdVWllling. Jeff Starling and Russ Meeks of the Spe-

present

Regular Meeting -

status

of

legal

Little Rock

services

Reg.Idlng

programs in the state and possible legal services programs. The Council adopted

cialization and Advertising Committee

a resolution that it supports local control of legal services programs. This resolution is to be communicated to the legal services committee of the Association with recommendation thai it be com-

reported that the Petition has been filed with the Supreme Court in accordance

with the action of the House of Delegates. The AFL-CIO, Ar1<ansas Consumer Research, and ACORN have filed petitions substantially asserting that lawyers should be allowed to advertise

without limitation as long as it is not fraudulent or deceptive. Other interested parties may be petitioning or involved in

the public hearing in January. The Council requested Jeff Starling, Russ Meeks and anyone else their Committee feels appropriate to represent the Asso-

municated to the Regional Office of the Legal services Corporation.

Anll-Tru.t And Trllde Regulellon CommlUee. President Niblock presented the interest of several lawyers in such an Association committee and the Council

approved the formation of the Committee,

ciation on brief and at the hearing and

authorized them to incur any reasonable costs. Jeff Starling pointed out that a specific plan of specialization was not

submitted with the Petition to the Supreme Court, but that the Committee is working on such a plan for presentation through the Executive Council and

House of Delegates of the Association.

U.. 01 M.jor Credit C.Idâ&#x20AC;˘. Bill Brazil presented a request and led a

Budget M.negemenl Program.

President Niblock reported on the work of an ad hoc committee which is con-

sidering a program of long-range budget planning over a five-year period for the benefit of the Association and to help the officers in budget analysis and planning as transitions are made from year to year in officers of the Association.

discussion concerning clarification on

the payment of legal fees through credit cards. Following discussion, a motion was dUly carried stating the position of the Executive Council that it does not recognize any restrictions on forms of credit a lawyer shall use as to client services.

Speclel R.te For Auocl.tlon Mem-

ber.. Following discussion of the programs of continuing legal education and particularly the systems created and sold by the Association, a motion was duly carried that a $20.00 differential be applied with respect to systems sold at the mid-winter legal institute so that Association

members will

receive

a

$20.00 discount on any systems purchased as compared with the price to non-members. The Council also con¡

Judlcl.1 Poll. Colonel Ransick reported for Chairperson Winslow Drummond that there had been 609 responses from members of the Bar and that this was considered a substantial response. It was pointed out that the results of the poll are confidential and are released only to individual jUdges and to three officers of the Association.

Syetem. Report. Colonel Ransick reported that the Probate System and the Corporation System had returned sub-

stantial profits. He also reported that a Family Law System is being planned SO that it can be presented at the 1979 Midyear Meeting. A Wills and Trusts System is being prepared for presentation at the mid-year meeting this January, 1978. In addition, the form book for Ar1<ansas

curred that the same differential would apply to any systems sold by direct application to the Association.

The Council also authorized the sale

editorial leadership of Bob Wright.

Norwood Phillips and Bud Whetstone

of systems in connection with regional

reported on the Workers Compensation

seminars by the Ar1<ansas Institute for Continuing Legal Education at the same

System which will be introduced in a

price for which such systems could have

Spring. They noted that the system is in the nature of a desk book and is being reviewed carefully with the full Wor1<ers

been obtained by attending the Fall Legal Institute.

lawyers is well on the way under the

Workers

Compensation Seminar this

Compensation

Loce' Control 01 Leg.1 5 8 _ Prog.......

The

Council

discussed

Commission

prior

to

NEW ABA POLL SHOWS

ADVERTISING NO.1 CONCERN OF LAWYERS Lawyers consider advertising the single most important issue facing the legal profession, according to LawPoll, a new feature of the American Bar Association Journal that makes its appearance in the November issue.

LawPolI, conducted for the Journal by Quayle, Plesser, and Company, Inc., found that advertising and other aspects of lawyers' relationships with the public are of much more concern to the legal

profession (71 per cent) than the practice of law (33 per cent), conditions of the bar (30 per cent) and the system of justice (21 per cent).

Based on a random telephone

survey of 602 ABA members in August, LawPoll found that 42 per cent of the respondenls listed advertising as their top individual concern.

Lawyers' image before the public

ranked second followed by ethics, legal services for the middle class, legal services for the poor and specialization, Unequal justice ranked as the least element of concern.

Sixty-eight percent of those interviewed said they disagree with the premise that lawyer advertising will lead to more competitive pricing, reSUlting in a general fee decrease.

The majority of those responding, 66 per cent also disagreed. however. with a suggestion that lawyers wouid pass along their advertising costs to the consumer in the form of

hig her fees.

LawPolI showed that most attorneys fear advertising will ulti-

mately lead to promoting the quality of services "and the slick kind of advertising that we associate with consumer products,"

completion. ' "

the

January 1978/Ar1<ansas LawyerI'ST

EXECUTIVE COUNCIL NOTES

by Cyril Hollingsworth Secretary-Treasurer

HOUSE OF DELEGATES HIGHLIGHTS 5eptember 17, 19n -

Called Meeting -

Little Rock

New Executl"" Council Member.

Leroy Froman was elected by a caucus of the Northeast District delegates to fill the unexpired term of John Mac Smith, who died recently. The House of Delegates passed a Resolution to be sent to the family of John Mac Smith citing his long and active service to the profession. In addition, Herschel Friday was elected to the Board of AICLE to fiil the unexpired term of John Mac Smith.

Committee on Lelll.laUve RepThe House of Delegates adopted the report of the Legislative

that the Committee be authorized to communicate to the President of the United States and the Ar1<ansas Congressional Delegation that the Association favors contributions for prepaid legal service plans being treated In the

Section presented a Resolution in favor

motion whereby the Association en-

Representative Committee in principle.

of postponement of the effective date for carryover basis provisions under the Internal Revenue Code 11023 of the 1976 Tax Reform Act. Mr. Brodie explained the serious difficulties faced by lawyers and others until appropriate guidelines are established regarding such provisions and the fact that the attorneys attending the Fall Legal Institute regarding

dorses and supports the proposed con-

_tat.....

This report considers the formation of a separate, non-profit, tax-exempt cor路 poration for the purpose of educating and informing the public, including the members of the Ar1<ansas Legislature, about legislative measures especiaily pertaining to the practice of law, the courts and the administration of justice.

Such a corporation would be completely separate and distinct from the Arkansas Bar Association.

WI" MIl Probate S楼etem. Foilowing a report by Col. Ransiel<, the House of Delegates approved the underwriting of a wiils and probate system for Ar1<ansas which wiil be the South Carolina system developed by Bob Wilkins, with an update for Ar1<ansas lawyers. The MidWinter Legal Institute wiil feature this system as part of its consideration of wills, trusts and estate planning.

P..,..1d Leg.1 Se..1ceI. Truman Yancey presented a report from this Committee with particular attention to proposed legislation In Congress which

same manner for tax purposes as con-

tributions to plans covering medical expenses and the like.

Raeolullon for POIlponement 01 tlla Eflact.... Date lor C.rryo""r Bul. Provi........ Ralph Brodie, Chairperson of the Taxation, Trust and Estate Planning

probate wof'1( overwhelmingly favored this Resolution. The Resolution was adopted by the House.

Unauthorl_ Practice 01 L_ Com-

m_.

The House took action to revoke present Committee on the

to the University of Ar1<ansas at Little Rock Law School for its program of legal symposiums for the students featuring Ar1<ansas lawyers and judges. The same appropriation previously was made for the University of Ar1<ansas Law School.

Appellat. Court. for Ark.n....

Following a presentation by Justice John Fogleman regarding the need for creation of an additional Appellate Court for Ar1<ansas and the constitutional amendment proposed by the Ar1<ansas Legislature, the House approved a

stitutional amendment allO'tYing an addi-

tional Appellate Court.

Lawyer Advarliling. The House approved the report and recommendations initiated by the Specialization and Advertising Committee and approved with slight modifications by the Executive Cou neil for presentation by petition to the Supreme Court as proposed amendments to the Code of Professional Conduct. The proposal adopted is based on one of those approved by the Board of

unauthorized practice of law due to present legal questions over the separate involvement of bar associa-

Governors of the American Bar Association. The proposal contains a provision that advertisements in the print media could include the description of the practice. for example one or more

tions In that area. The House further resolved that a petition should be presented to the Supreme Court of Ar1<ansas to appoint a committee as part of its function to wor1< In the area of the unauthorized practice of law. President Niblock appointed Charles Brown, Charles Carpenter and Otis Turner to draw a

fields of law in which the lawyer or law firm concentrates; and/or a statement that the lawyer or law firm specializes in a particular field of law practice but only if authorized by the appropriate entity approved by the Supreme Court of Ar1<ansas for regulation in this area. Jeff Starling, Chairperson of the Special-

the

would treat contributions to a prepaid

petition and present the same to the

ization and Advertising Committee, ad-

legal services plan differently than the

Supreme Court In behalf of the Associa-

vised the House that wor1< of the Com-

other favorable tax treatment of other plans, such as those for medical treat-

tion.

mittee would continue In the area of specialization and a recommendation would

ment. The House duly adopted a motion 3lI/Ar1<ansas Lawyer/January 1978

UALR L.w SChool Sympcllium. The House approved a contrlbu1ion of $500

be forthcoming.

Every practicing lawyer should have a copy. Need to get my order in now for the Arkansas Probate System.

Fines, the new Arkansas Probate System was the highlight of the Fall Legal Institute - a truly great seminar!

Š

Arkangag Probata The Arkansas Probate System is a 4OO-page loose-leaf legal-size volume, with 28 separate tab sections contained in a special easel type binder for ease of use by lawyers and their secretaries. It is a "must" legal reference for all Arkansas lawyers.

----------------------------------------------------ORDER FORM

o Send me a copy o My check/money

of the Arkansas Probate System. order for $77 (includes $2 mailing cost) is enclosed.

NAME

Send order with check to: Arkansas Bar Association 400 West Markham Little Rock, Arkansas 72201

ADDRESS:

_ _

January 1978/Arkansas Lawyer!35

Prepaid Legal services continued from page 33 commissioners.&3 This "preemption" is less than crystal-clear, however. Another writer feels certain that Congress did not purport to invalidate all state rules affecting the lorm and content of legal service plans (and)...cannot have intended to preempt in an area which it has not attempted to regulate."

This issue remains undecided in Arkansas and "8 number of other states," according to Frank Sewall, staff attorney for the Ar!<ansas Insurance Department. es

The _ l I y _eel ArlI...... Insur-

ance Actl l • •u.... jurisdiction by the Ark...... lnaur.nce Commlul_r 01 .11 tranaactlona ImIolvlng 1eg.1 lnaur· ance. Under a limited exception, "Legal services provided by unions or employee assoclalions to their members In m.1Ien rwlatlng to employment or occupation" are not considered insurance'" and therefore not regulated by the act. Impliedly, _ legal services provided by unions or employee associations .,. subject to its control and thereby perhaps in conflict with the ERISA preemption. Any organization relying on this preemption and not conforming with the provisions 01 the Ar!<ansas Legal Insurance Act will be "taken to court" by the Insurance Department. according to Sewall."

....

Additional Burden on tIw JudIcI.1 Sya-

It is accepted lact that many courts are already overl>urdened and additional cases are piling up daily. The effect 01 a vastly increased docket resulting from increased availability and use 01 prepaid legal services raises the issue of whether our current system can handle the projected burden."

In addilion, there's the question of whether the nalion's almost 400,000 attorneys could begin to handle the demand that prepaid legal services might create. This outlook is more optimistic than the increasing docket load, though, since the "lawyer population" should reach about 500,000 by the year 198500 or, according to another estimate, double In number by 19l16.01

34/Ar!<ansas Lawyer/January 1978

Lack of D.t.

Even though some prepaid legal service plans have been In existence lor over six years and have yielded valuable Information, there is still a lack of meaningful actuarial data upon which to base the cost of group legal insurance and the generally most desirable type 01 plan. The data currently available is rather fragmentary and less than a good basis lor rate estimation. Fortunately this is presumably a short term problem, but until it is solved, it will be a substantial impediment to implementation 01 legal insurance programs.t2

Greene. ,. t..w

.semc-

.semc- -

a (1m) PNpekJ ~ s.rwc.; W'* It .. W".,. It ia, s.r. Rew.. Prop.JUeiflty Ina Ed.. oec.nber. t9n, at 22.

B.J

~

L.- 1Munnce,

Many excellent articles have been written in the past lew years dealing with prepaid legal services, but "(t)o date, the . publicity has greatly exceeded the performance. "13 The foregoing discussion is by no means an all-inclusive explana· tion 01 the concept. but merely an attempt to summarily familiarize the reader with the subject, its possibilities, and problems. The interested reader is encouraged to pursue further detail in the footnoled references.

Sources have estimated that apprOXimately 35,000,000 families," or over 120,000,000 American citizens95 are not adequately served by the legal prolessian. This vast, as yet primarily untapped mar!<et represents untold hours of legal war!< lor present and future attorneys and billions of dollars in potential revenue. In early 1976, an estimated 5,000 plans across the country96 were providing prepaid legal services to between 1.5 and 2 million persons. iT Although much has been done in the field of prepaid legal services, many problems need to be resolved and much remains to be done. These difficulties, however, may be viewed as temporary hurdles rather than enduring obstacles to realization 01 the unsatislied need and potential. The practicing bar, law schools. regulatory agencies, and insurance interests must all wori< together in the public's best interests to achieve this resolution. One thing is certain: Once prepaid legal services plans have fully developed, the legal profession will never be the same.

June 10. 1V74• • 48-

137 11V74) MItlkIl'\, PrepekJ ~ W".,. ~ W. Need To Oo? 13 aa sr. 8..1. l' (1976) Mutphy. Buy How, ffet:fIM LIIer, A V'" oIlhe FtAtxe. Trial, March/AprIl 1915. at 12.

Murphy. Cumm 51.,... at Pr.,.;d ~ 5eMcw, 10 FonIm 42S (11'7') Murphy. The PNpMJ lJgaJ Picttn, S2 AB.A.J. 15811 (1976) Murphy. Prepeid Tall"'" RoOf Tn.I, June, 1976. at 1•• New Frlttge 1JeMI*: PrepeJd UgM Sus. W. . . JanulIfy 12, 1974, &I 34 How Gtoup /MlJ(MCe p.-,. /he Lawyw: Prepeid ~., P1«Ja, Bu•. W . . . July 10. 1971, al 58.

The Oro-nlzecl Bar and PrepMt Legal 5eNoces - IvI lvltitrual 1vIa/yM. 1i75 WutI. U.LQ 1011 P*migstOl1, u.gal Elf".,... InaurMCe, 23 Am. J. Comp. L 451 (1975) PillS. Currenl {)awtlopment. In PrtpeJd lJgal 5en'Icer, 11 Fotvm 18 (1975) PrepMd ~al - How to En'" 1M Field, Underwriter: Prop. and C. .ua«y 1M. Ed., November 1. 197', at 29.

St. IvIloIne, Growth P.n«mln Lllgel AFL.(;IO Am. Federatlonlat, Febfuaty, 1976, at 19

same..

s.rwc.,

H.,-,

Servfc_.

sandler, Negot/aled Prepaid ~el5enrlcN Plana: PMI, Hnf. and FUlln, 17 Lab. W. 301 (1976)

sen•• Panel 0mI1. P~menI ~ PrepekI ~eI From Income, ~(/ Uno.rwrlf.,· Prop. and Caaue«y Ina. Ed.• June 18.

1976, at 18.

The StweYepor1 Mel Columbva Plana of Prepeid Legal Sew· vion - !VI lvIalysll ol Plans Presently In OperatlOl\ 17 IUyIor L Rev 485 (191S1.

Soremen. Group Lllgal Plena - The sr•• oI/he Art, N.rl Ur'ld«wrh..~ Prop e/IJCI euua" lnI. Ed.• July 19. 1974, at 38 1rie1, March/April 1915, al 12Wilcoll and Schneider. PrepekJ ~ 5ervIe.- wtd lhe Code at ProMalonal R-.ponaI/:IIIty, 38 «:»tiel 51 W. 761 (1i751

2. CASES c...... & otera Y

Unitld Stales. 2l!l6 U.s. 4Zl 11932').

8hd. ol R. R. T.-.uwnen y, Va.. 'J17 U.s. 1 (1964).

FecI. OutJ Y Nat'! lMgult, 25l1li U.s. 200 1t922).

FTC y RMadaon eo.. 2183 Us. &13 1t931).

AlL

Va. ~ Bar, 121 Us. m (1915).

Button. 311 Us. '15 (1 l.NW y . . Stat. Bar 'n, 3l!l8 Us. 11 (1967).

United &-_ y Na/'I ·n of RuI Estate Bds.. 339 U.S. 4115 t18l5O)• Un'tid TfWIIP. Union y SlatlI s.r 01 M.ch.. 101 U.s. 57Ii

GoldfartJ

NAACP

y

y

(1971).

MJA Code of ProfeMIoNI]

Au_

1. PERIODICALS ~ PrepMd ~ ~ -

Son» New Dtw.Iel~ 1NfQ. 25 ~n Ina. Couneel Q. 'JZ1 (1i15).

Connally. Eth/c.J Co,./It1fQt/oM 01 ~ '--fIaI 11 FonIm 201 (19TS).

De8agglo, ~al ln$UrMX:e. Saturday Rev., september 23.

s.tva..

1972, a14S.

EMlunds Mel KNlIe• .. Pret»kJ ~aJ sernc.: II. Dtw-'opmen' wtd Futln." 12 "1...11 B.J. 3 (1976).

Eklol and KaylOn, A Turning Point lor PrIIt»Id Legal IMur· Me.? BNf. Rev.: Prop.1lJllbillty 1M. Ed.. OclOber. 1976. at 14.

'I.

~

3. MISCELLANEOUS SOURCES

BIBLIOGRAPHY

M_. LQ. 24J (le73).

~.

s.v.e:. W,Itwt Reech 01 1M ~ Amencan A ~ _ of the Turney He.,..,., 21 Barb'L Rev SJ3 (1915). l.egIIl Servce Pt.. - Coming ol Age. 48 sr JaM'. L RlW l.egIIl

s.mc- -

III. CONCLUSION

Fisher, Prepaid tAga/5ervlc. - QwI

c.,. He"" PrfI*d t..paI $Mot:.. CuI1Wlt.

Februaty. 1973, al 18.

Gtoup Legal 5eN"1C8I. From Houston 10 ChICagO. 79 DiclcInson L Riw. 821 (1m) Hanebefg. Gtoup l...epM ~ - The Frinf1e 01 the FutIJfe? 112 Tr and fit 2fl6 (1913) Hayes. DelNetY S¥atemt lor t..g.1 Setvic.- - PrepIIid tAg-' wtd Prepeld ~ InaurwJCe, 4O.hI Counsel J 414 (1973). ....,.. Prepeid ~aI The "'anang. NtNtJ. 41 Ins CounHI J 3Il5 (1V74) Jones, ~ C o ~ The MiUIng L.i'Ik. TrlItI. March/April li15, as 28.

KalpIan. PNpMJ ~ s.mc. W".,. In W.? 13 GIl. sr_

CIoHd PMell. 58

~Ilty,

19B1, Disciplinary

2·101

ABA Comm. on ProleMlonal Ethlca, OpInions. No. 333.

AB.... Reviaed HerwIfX>ok on PrepeId Lllgal ServicM, 2, om).

Ark. Acts 1977, No. 388.

26 Stat. a. as arMnOed 1S US.C. 11 Conlerence Repcll'1 on Amendmflnt olLMRA of 1947, CongreMlonal Record. July 17, 1973, and comments of SenatOf Jill/lIS, JHS 13147. /Agel InaUfMJe. Prepeld Pktna Contlnuel Spfead, Arlc.

Damor;ral. NovernOer 1, 197f!. al lOB. col. 10.

Telephone interview wrilh Frank sewall Staff Attorney w1m !he Mansaslnaurance OepanmenL In Uttle Rock~. 25,

19m.~

they will accept for the services they offer and then presentation of such plans to the public probably constitutes a price fixing agreement.67 As to the second problem area, any attempts by State Bar Associations to discriminate in favor of open plans could well constitute a restriction on competition as well.

To the extent that the new pension rethree types of organizations promoting the plans: Bar associations, labor unions, and insurance companies.55

IntemIlI R _ Code Provl.......

The development of prepaid legal service plans received tremendous impetus

with the passage of the Tax Reform Act of 1976. This act added Section 120 to the Internal Revenue Code and excludes from gross income:

(A)mounts contributed by an employer or on behalf of an employee, his spouse, or his dependents under a qualified group legal services plan (and) the value of legal services provided, or amounts paid for legal ser~

vices, under a qualified group legal services plan...to, or with respect to, an employee, his spouse, or his de-

pendents. 56 With this clarification of the tax status of these benefits comes the prediction by Philip J. Murphy" that the number of legal insurance plans should double in 19n as a resull. 56 This change could cost

the

Treasury

as

much

as

$400,000,000 a year, according to Senate Finance Committee staff estimates. 59

AntItNII ConeIder8t1ona Antitrust problems that have arisen

during the development of prepaid legal service plans pose one of the most serproliferation. 5O

ious threats to their The Antitrust Division of the Department of Justice has expressed the opinion that there are two potential areas in which prepaid legal service plans may raise

antitrust questions: (1) Price fixing, and (2) restrictions on competition between open and closed panel plans."

Section 1 of the Sherman Act declares fNery combination of conspiracy re-

straining trede among several states to be IIlegal. ll2 Even though lawyers in most senses of the word are not tradesmen,

the Antitrust Division believes that they are governed by the trade law insofar as the economics of their professional practice. 53 In a seeming departure from earlier dictum,64 a unanimous Supreme

Court uphetd this view in a 1975 case in which it was said that exempting anorneys from the provisions of the Sherman

Act would be at odds with the Congressional intenl." The Court further held that mandatory adherence to fee schedules is in restraint of therefore within reach of the Act. 66 Lawyers agreeing on

minimum trade and Sherman amounts

form law (discussed infra) serves to preempt the bar from regulating the form and content of prepaid legal service plans, whether open or closed panel, un-

der the guise of disciplinary rules, (however,) (this) area of antitrust concern is moot-58 "A number of bar association planners have turned to insurance company underwriting of open panel plans to avoid the antitrust problem. "M

Ba, Elhk:.

The passage of several amendments

to the Code of Professional Responsibility at the ABA's February 1975 midwinter convention in Chicago mani-

fested a dramatic change in anitude which began the year before at a similar meeting in Houston. These so-called "Chicago Amendments" removed many of the ethical obstacles hindering the maturation of prepaid legal services plans. While the prior stipulations of the Code had prohibited virtually all adver-

any lawyer as a private practitioner outside the program of the organization (DR 2-103 (D) (4禄).

6. Attorneys may not operate or pr<r mote group practice organizations for the purpose of self-benefit (DR 2-103 (D) (4)).

7. The plan must provide appropriate relief for a plan member who wishes to

select counsel other than that furnished, selected or approved by the plan in cases where representation by

plan counsel would be inadequate, inappropriate, or unethical (DR 2-103 (D) (4)),73 "The Chicago amendments represent a significant advance for groups legal services, "74 and have been categorized as "in most respects... satisfactory."7s

Art<_.

~

amendmenta .en edop*l by Sup...... Court In a per curiam opinion d _ Dec....ber 15, I/Ie

1975."

The view of many participants in the

Fifth National Conference on Prepaid Legal Services at New Orleans was that the major obstacle to the development of prepaid legal service plans 15 the lack of public interest or "consumer awareness. "77 The Chicago Amendments mentioned aupr. are a step forward, but

further modification of the Code of Professional Responsibility may be necessary to overcome this obstacle. One

stricted the permissible scope of group legal services!' the Chicago Amend-

writer notes the difficulty of informing 60% of the population "of their need for anomey services without the use of

ments change these provisions, as well as others. These new rules eliminate the

equitable balance must be struck be-

different treatment of open and closed panel plans n and provide that: 1. Qualified legal assistance organizations may engage In dignified com-

sponsibility to afford legal services to all

tising of legal servlces70 and severely re~

mercial publicity about their services, but information about individual lawyers may be communicated onty to

panel members or beneficiaries. (DR 2-101 (B) (6).

2. Legal assistance plans may not in--

terfere with the independent professional judgment of the lawyer on behalf of his clients - nor may such plans in any way subject the conduct of lawyers to the regulation of nonlawyers (DR 2-103 (D) (4)).

3. An organization set up to provide legal services may be for profit but may not profit from rendering legal services (DR 2-103 (D) (4)).

4. Such profit-making organizations may

not provide

legal

services

through lawyers employed by them, but can recommend attorneys as long

as they are not supervised or directed by the organization (except when such an organization bears the ultimate liability of its members or beneficiaries) (DR 2-103 (D) (4)).

5. No legal assistance organization

may operate to procure legal wor1< for

mass advertising techniques."78 An tween "the desire to avoid the evils of advertising" and "the profession's reAmericans.'路7Q

Dlapute 0 .., Conlrol Another problem of substantial consequence is who will control group legal services. Bar Associations feel quite

strongly that legal ethics demand control by the organized bar, while past experience suggests that other interested parties, particularty unions, "are not

about to have programs dictated to them by those whose utilized. "SO While

services will be this jurisdictional

problem has not yet assumed major proportions, it is an additional roadblock which involves "jealous perogatives and protective boundaries of the various groups involved. "81

According to one source, a regUlatory aspect of this dispute "appears" to have been senled by the passage of the Employee Retirement Security Act of 1974 (ERISA)." This legislation apR'ies to plans funded through collective bargaining agreements or from union dues and

clearly makes these plans subject to federal regulation only and exempt from regulation by the various state insurance

continued on page 34

January 1978/Ar1<ansas Lawyer133

In an effort to determine why these middle Americans don't properly utilize the services of an attorney and whether they would take advantage of such help if it were available through a legal services plan, many surveys were conducted.

One such survey run by Unimark/Caldwell of Dallas determined that

Prepaid Legal services continued from page 31 stand In the face of these prior declsions. 27 Bar Con8IdaratIon In 1965, the American Bar Association adopted a milestone resolution In which It declared Its strong support for increased availability of legal services. 28 While the resolution was adopted primarily out of concern for expansion of legal services to the poor, It also Included language that indicated the ABA's " ...urgent duty to...develop more effective means of assuring that legal services are in fact available at reasonable costs for all who need them. "" Following that resolution, that the A.B.A. formed several committees that began to study and explore the problem of availability of legal services; In 1970, the A.B.A. Special Committee on Prepaid Legal Cost Insurance was formed.

Two years later, the A.BA formally urged state and local bar associations to study and experiment with prepaid plans, especially those which allowed free choice of attorney by the Indlvidu81. 30

In February of 1974, the American Bar Association reaffirmed its commitment to providing legal service for all Americans and stated that it: ... (E)ncourages the development of new prepaid legal service plans designed to make legal service more truly available to individuals if it provides assurance of quality services at reasonable costs and is consonant with the highest professional standards and the best interests of the pubtlc. 3l Detannlnatlon 01 lila Naco It has been estimated that two-thirds of the people in the United States are without adequate legal services." Indeed, the American Bar Association's Revised Handbook on Prepaid Legal Services acknowledges long-standing awareness that"...the middle 79% of our population is not being reached or served adequately by the legal profession. "33 These individuals may be said to be "legally indigent" because while their income disqualifies them from participation In free or subsidized legal service programs. it is nevertheless insufficient to afford most legal serviees.34 321Ar1<ansas Lawyer/January 1978

approximately 70% of Americans do not seek proper legal help when they need it because of the cost."" Danny Jones, chairman of the American Trail Lawyers Committee on Group Representation. has estimated that over 3:1,000 legal matters per day go unattended by attorneys because middle-income people cannot or will not pay minimum lees. 36 Fireman's Fund American Companies conducted an extensive survey in 1972 . seeking the answers to four questions: What legal services were needed, how often they were required, what they cost, and how much variation there was in use according to demographic factors. 37 A Yale professor conducted the survey on some 2,CXX> lower-middle income families in Akron, Atlanta, Nashville, Oakland, Rochester and Seattle and determined that while 36% of the families had legal problems and 23% could recognize the need for legal services, only 15% had contacted an attorney." Probably one 01 the more meaningful results of the survey was the finding that frequency of usage of legal services directly correlated with level of income: Only 17% of those persons surveyed with incomes under $5,000 utilized the services of an attorney, while 36% of those with incomes over $25,000 did so."" At lirst glance, the most important linding of this survey appears dismaying: 75% 01 the sample population were not willing to pay any amount for prepaid legal services. Only 21% were willing to pay for an insurance program of this type, and 4% didn't answer.'" From another perspective, thou9h, the result

was encouraging: Nearly one-fourth were willing to buy, and that indicates a sizeable need.

Syracuse University, in a very similar survey, found virtually identical results: 36% of the families had legal problems, 23% recogniZed the need for legal assistance, but only 15% had contacted an at-

torney."; Columbia University's School of Social Wor1< surveyed approximately 3,000 members of a New York union and lound the following: 01 those polled that responded, almost half stated a need for legal services but had not contacted an attorney; "The survey clearly indicated that the overwhelming majority of 89% would be positively disposed to utilizing an attorney if such an attorney were available through their union."42

The American Bar Foundation and the ABA Special Committee to Survey Legal Needs conducted a survey in 1973 and 1974 which lound that the public fears aItorneys as being expensive and unwilling to help with minor everyday problems.'" Over 18% of those polled said they feared the prospective cost; over 60% felt that lawyers charge more lor their services than they're worth; nearly 25% felt it was undesirable to use an attorney or the legal system to resolve disputes; over 3:1% said they handled their problems in other ways; and over 40% felt that a person would not call a lawyer until he has exhausted every other way of solving his problem."

Various polls of attorneys by a number of state bar associations have acknowledged the need and endorsed the concept of prepaid legal services."

Seventy-one percent (71 %) of 20,000 attorneys in California stated they would support a plan sponsored by the State Bar;" the response by lawyers in an Arizona survey was similarty encouraging.'u The results of these surveys all indicate at least one thing: "From the point 01 view of classical economics, 8 market has been discovered. The discovery Is the U.S. middle-class mar1<et for legal advice."" One projection 01 the annual volume of this mar1<et is roughly $5,000,000,000." One writer sums it up by saying, "(t)hat prepaid legal services are a necessity of life has been exhaustively demonstrated."'"

II, Probleml Involved In Development 01 Preplld Lege. Servlcal Pleno Many types of problems have impeded the development and proliferation 01 prepaid legal service plans. While some have been resolved, others have been uncovered and demand a solution if prepaid legal services are to become widely available to the middle-income Ameri-

can.

Amendment 01 tt. Taft-Hartlay Act In August of 1973 one of the biggest stumbling blocks In the creation of prepaid legal service plans was removed with the amendment of section 302(c) of the Labor Management Relations Act of 1947 (Taft-Hartley)." This amendment provides that joint labor-management trusts may be established to defray the costs of legal services for employees, their families, and dependents. 52 In addition, employees may now select a "counselor a plan 01 their choice."" As a result of this amendment "the providIng of legal services as a benefit is now a mandatory SUbject of collective bargaining"54 and unions may now nego-tlate for this "fringe benefit." Responsibility for bringing about this change was due largely to a cooperative affort by the

more universal method of practicing law have received considerable attention and tremendous impetus within the last few years, it is hardly a brand-new concept "Institutions performing the same social function as prepaid legal protection can be detected in the Roman relationsllip of patron and client and in the lord's dUty to defend his man, both physically and in courts of law. "'0 The concepts disappeared with the advent of guilds and was not rediscovered until the mid-nineteenth century in France, atwhich time ..... several companies...offered contracts under which they agreed, for a fixed periodic consideration, to conduct lawsuits for their customers...";; By the turn of the century, prepaid legal insurance plans of various types were being experimented with in several countries in Western Europe. i2 In the United States, "(I)egal expense insurance was written as early as 1899 by the Physician's Defense Company of Fort Wayne, Indiana."i3 In existence since the early 1900's were other limited benefit plans prepaid by unions and associational funds. Some of these early plans included the Policemen's Benevolent Association in New Yorl< and the Brotherhood of Railroad Trainmen.

Policemen in the former organization were legally represented before the Civil Service and Police Review Boards, while the latter group established a referral network of lawyers who specialized in cases concerning the Federal Employers Liability Act. Under this plan, the member attorneys charged a somewhat less contingent fee.'<4 Some automobile

clubs offered their members automobilerelated legal services beginning in the late 1920's," and the American Automobile Association has long provided legal services for its members involved in minor accidents.

Some modern legal insurance plans very little from the early historical precedents. According to one source, many plans " ...provided to their membership by unions cover little more than legal representation for a member before a workmen's compensation board,"i7 This limited benefit appears atypical, however.

Judlcle' CoMlcI.,etlon The interest in and growth of prepaid legal service plans during the past few years has been due "in no small part" to a series of Supreme Court decisions beginning in 1963 with NAACP v. Bu!路 ton. '8 In this case the Court held that the First and Fourteenth Amendments to the Constitution protected the right of the NAACP and its defense fund " ...to finance litigation handled by its staff attorneys, including defraying expenses and paying the attorneys up to $60 per day, and to refer people to the staff lawyers to handle cases.";9 The Court concluded that the State of Virginia could not forbid such activity under the guise of a statute prohibiting the solicitation of legal business. 20 In 1964, the Supreme Court again considered a V irginia statute prohibiting the solicitation of legal business and the unauthorized practice of law in Bhd of R, R. T'elnmen v. Ve.". The conduct under dispute here was the union's referral of injured members and the families of men killed in the course of their employment to chosen attorneys. The Court followed Button and said this conduct was protected under the First and Fourteenth Amendments. 22 Three years later, the Court handed down a similar decision in UMW v. III. Stat. B.r Au'n.23 Here the Bar Association had brought suit to enjoin the United Mine Workers from hiring staff attorneys to represent union members in Workmen's Compensation disputes before

the Illinois Industrial Commission. In its decision, the Court specifically stated that it was following Bullon and T,eln路 men and held "that the rights to freedom of speech, assembly and petition under the First and Fourteenth Amendments gave the union the right to hire attorneys on salary to represent members in the assertion of their legal rights."2<4 The most recent decision of the Supreme Court in this area was Untied Trenep. Union v. Stili. Be' of Mich." In this 1971 decision, the "Burger Court" followed Button, T,.lnmen and United Mine Work.... and held that such activities as furnishing legal advice to union members or their families, furnishing to attorneys the names of injured workmen, and transporting injured members to legal counsel's office are protected by the First and Fourteenth Amendments."

Mr. Justice Black, speaking for the majority of five, emphasized that the opinion is not to be construed narrowly when he stated: In the context of this case we deal with a cooperative union of workers seeking to assist its members in effectively asserting claims under the FELA. But the principle here involved cannot be . limited to the facts of this case. At issue is the basic right to group legal action, a right first asserted in this Court by an association of Negroes seeking the protection of freedoms guaranteed by the Constitution. The common thread running through our decisions in NAACP v. Button, TreInmen, and United Mine Work.... is that collective activity undertaken to obtain meaningful access to the courts is a fundamental right within the protection of the First Amendment. However, that right would be a hollO'N promise if courts could deny associations or workers or others the means of enabling their members to meet the costs of legal representation. That was the holding in United Mine Work...., Tr.lnmen, and NAACP v. Button. The injunction in the present case cannot continued on page 32

Williams G. Crowe is Deputy Prosecuting Atlorney of the Sixth Judicial District of Arkansas (Utile Rock). He became interested in the concept of prepaid legal services after his first year of law school and while doing a research project for business school. This article is the outgrowth of this interest and is an abbreviated version of his Law Review Comment. Mr. Crowe received a J.D. from the University of Arkansas at Utile Rock School of Law in 1977, an M.B.A. from Southwest Missouri State University in 1976, and a B.S. from Southwest Missouri State University in 1972.

January 1978/ArI<ansas Lawyer/31

Prepaid Legal services Plana: A Familiarization With The Concept

by Williams G. Crowe

(Editor's Note: The references in this article to related Arkansas law and Rules of the Arkansas Supreme Court are of particular interest to Arkansas lawyers. The subject, itself, is of great moment in the practice of law. Due to space limitations, the footnotes to this article have not been printed. However, the footnotes are available at the Bar Center upon request. The BIBUOGRAPHY has baen printed at the article's end.)

L IHTRODUCOOH

D1l1r1butlon 01 semce" "CIoMd Panel "Open Panel"

Y.

Definition Prepaid legal seNices may be defined as " ...a system in which the cost of possible legal seNices needed in the fu· ture is prepaid in advance by, or on bahalf of, the client who receives such services. ", Group prepaid legal seNices "involves the same principle, except that the plan of prepaid legal seNices is sold to an organized group such as a labor union.'" The prepayment may be made by payroll deduction from the individual's wages, by an authorization to deduct money from his credit union account, or directly from the individual himself. Structuring these plans as group offerings has several advantages: An easy collection mechanism of small

monthly prepayments Is established, and the cost to the individual Is kept low by spreading the "risk of use.'" In short, "prepaid legal seNices are to the law what Blue Cross and Blue Shield are to medicine. "04 Basically, group legal seNices seNe three primary needs: (1) The costs of legal seNices are significantly reduced; (2) serious legal difficulties may be thwarted by periodical consultation;' and (3) group legal seNices provide access to the legal system for those who would not otherwise participate.

For the most part, prepaid legal ser· vices are being sponsored and promoted by three different types of organi-

zations: Bar associations, labor unions. and Insurance companies. While differ· ing In some details, many similarities exist between the plans as noted Inf,.. :IO/Al1<ansas LawyerlJanuary 1978

The distribution of seNlces of prepaid legal seNices plans is provided either by a "closed panel" of lawyers, an "open panel" of lawyers, or some combination thereof. The American Bar Association defines "closed panel plans" as: ...(A)ny prepaid legal seNice plan under which (1) the attorney is the only lawyer whose seNices are fumished or paid for or (2) the attorney is one of a selected panel of lawyers whose services are paid 10r.8 This "closed panel" may be composed of (1) a group of lawyers designated by the sponsoring organization, (2) a law firm selected by, but independent from, the sponsoring organization, or (3) salaried lawyers employed by the organizatlon. 7 Open panel plans are those where the recipient has a free choice of tawyers.

SaNices under any open panel plan may be provided by: (1) any lawyer, (2) any lawyer within a limited geographic area. or (3) any lawyer from a panel on which all lawyers may enroll.•

ea....... 01

Ben.llta

limitation as to the type of advice sought and received.

2. Litigation Benefit: Covers fee that arise from hearings, trials, motions, or

court appearances before trial courts, administrative boards, or arbitration panels. There are maximum payments for certain tasks involved in the litigation.

3. Major Expense Benefit: Supplements the litigation benefit and covers such things as trial expenses, i.e., filing fees, witness fees, and discovery costs.

4. Domestic Relations Benefit: Affords protection for costs and fees arising from marital problems such as divorce, separation, child support, and child custody. No coverage for this category is provided by any other benefit Typi. cally excluded from coverage are such

things as business ownership or opera· tion dispute, professional activities, cases in which insured is a plaintiff and

a contingent fee is customarlty charged, title examination, probate or guardian-

ship of assets over $5,000, unreasonable or unnecessary seNices, physically fil~ ing OUt completing, and filing tax returns, class actions or interventions, claims whose cost is otherwise provided

Although variable in benefits, legal seNice plans will generally fall into the categories which follow; it is significant to note that costs as well as legal fees

for (I.e., motor club coverage), a case or dispute against an employer, labor union, or trustees or officers thereof, and

are covered in many programs.

pany. Generally a plan will be mal1<eted to a group as a comprehensive package.

Variations will occur in the benefit

1. Basic Benefit: Affords protection for fees, costs, and expenses Incurred by the member or his family arising from consultation and advice, negotiation,

conference. letter writing, document drafting and wills. There is is usually no

any case or dispute against the com·

amounts payable in the above mention·

ed categorles.-

Hillorical Beckllround Although prepaid legal seNices as a

There may be an angry client on your trail!

----- -- ------... .

You never know when a client will threaten you with a lawsuit ... and be hot on your trail to collect. In view of the growing number of claims and the dollar amounts paid in settlement, the time may come when the only practicing attorney will be a well-protected attorney. 0 lawyer, working alone or as part of a team, is immune from a lawsuit.

CNA and the Arkansas Bar Association have worked together to come up with a comprehensive program of professional liability insurance for its members that helps protect both your financial and professional future. First, it helps to minimize the causes ofliability suits through Joss preven tion programs. Then, it provides financial protection to help guard you against professional and business liability with a maximum of $100,000 per claim ($300,000 annually) after a deductible.

Think you need more? Supplemental protection of$l,ooo,Ooo for business and professional coverage and $1,000,000 for personal liability is also available. Your professional survival may depend on adequate insurance protection. Find out more about your Arkansas Bar

Association sponsored Comprehensive Lawyers Professional and Business Liability Plan, including the exclusions, any reductions or limitations and the terms under which the policy may be continued in force. Just send the coupon below to the administrator: Rather, Beyer &, Harper; Three Hundred Spring Building; Little Rock, 72201. Or call (501) 372-4117.

,---------------------,

I

Please send me information for the Arkansas Bar Associalion sponsored Lawyers Professional and Business Liability

Insunance. Send to: Arkansas Bar Associal'ion Administrator Rather, Beyer & Harper Three Hundred Spring Building Little Rock, Arkansas 72201 Name

_

Firm

_

Address'

_

Oty

span....... by

L State

lip

~

(~~~ I IW" I ~

January 1978/Arkansas Lawyerl2l

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.

_

Year-End Tax Planning For Capital Gains And Losses

by James E. McClain, Jr. Associate, Spltzberg, Mitchell & Hays

Introduction The Tax Reform Act of 1976 ("TRA '76") made some changes in the tax law that may affect traditional thinking in regard to planning for capital gains and losses. Maxims of tax planning have

been 1) to cause losses to be short term and gains long term, and 2) plan for short term gains to occur in the same year as long term losses. These basic concepts have not changed, but timing and limitations on the use of losses to offset ordinary income have changed.

Longer Holding Period Prior to 19n, the holding period required for long term capital gain and loss treatment was more than six

months. For tax years beginning in 1977, the period is extended to more than nine

months, and for tax years beginning in 1978 and later, the period is extended to more than one year. 11222. 1 These differences in holding periods have created some interesting planning opportunities. Consider the situation of an individual calendar year taxpayer who purchases property for investment on Febnuary 15, 1977. If the property in-

creases in value he can sell it for a long term capital gain after November 15, 1977. However, if the taxpayer waits and sells the property after December 31, 1977 and before Febnuary 16, 1978, the gain will be characterized as short term because of the longer hoiding period in effect for 1978. This is obviously contrary

For the purpose of planning for losses,

ment sales. A reading of relevant code

consider the same individual calendar year taxpayer who purchases investment

sections does not provide assistance in regard to certain situations. For exam-

property on February 15, 1977, and the value of the property subsequently

preciated capital asset in November of

decreases. Since it is more desirable for a loss on the sale to be characterized as

1977 after holding it for ten months. The

short term, the taxpayer should sell the property either prior to November 16, 1977, or after December 31, 1977, and before Febnuary 16, 1977. Thus, a taxpayer holding loss property in late 1977 may find It advantageous from a tax standpoint to wait and well the property in early 1978.

sale under 1453. Clearly the amount received in 19n qualifies for long term

time in order to receive long term capital

gain treatment.

transaction qualified as an installment

capital gain treatment, but what about

that received in 1978 when the holding period is twelve months?

Although this point is not covered in the

amendments

to

the

code,

Tax

Reform Act section 1402(c) and the legislative history are very clear and very specific.

Incl'8eHd Limit on Capltel Lo.. Deductions TRA '76 did not alter the part of 11211(b) (1) which allows individual taxpayers to deduct capital losses to the extent of capital gains. There was also no

change in 11211 (b) (1) (c) (ii) which only allows 50% of the excess of net long term capital losses eNer net short term capital gains to be deducted from ordinary income. What was changed is the

maximum limit for the deduction of losses in excess of gains, For tax years

beginning in 1977, the limit is increased from $1,000 to $2,000, and for 1978 and after, the limit is $3,000. f1211(b) (2). In the case of married persons filing

It is provided that if the gain would have been long term in the year of sale it

will remain long term, although payments are received at a time that would otherwise cause the gain to be short term. 2

Summary The holding period changes generally work to the detriment of one selling appreciated property and to the benefit of one selling loss property. The increase in the capital loss limitation will be beneficial to the taxpayer selling loss property. Each of the changes are important in planning year-end transactions.

separate returns, each of the above

amounts is halved. 11211(b) (2).

to the traditional notions concerning

holding property for a longer period of

ple, a calendar year taxpayer sells an ap-

InatellrMnt S81ea The change in holding periods could cause a bit of confusion about install¡

'section references are to the Internal Revenue Code 011954 as amended unless othefWise stated.

2TM Relorm Act 01 1976 5eetiClll 1402(c): Stat! of the Joint Committee ClIl Taxation. 94th Gong" 2d 5ess., Geoeral Explanation 01 the Tax Reform Act of 1976 (19761, p.â&#x20AC;˘ 27.

'-

January 1978/Arkansas LawyerI'ZT

West Announces New Reference On Legal Malpractice West PUblishing Company has announced it will publish a new 650page reference for lawyers titled "Legal Malpractice." It is authored

by Ronald E. Mallen and Victor B. Levit and is schedu led for publication this Fall.

According to West, it will be the first major work on the subject of legal malpractice. Every aspect of legal malpractice will be discussed with emphasis on liability, prevention, litigation and insurance.

The new publication should be of interest to all lawyers. Malpractice insu rers say that clients are now suing their attomeys twice as often as in 1972. As a consequence, malpractice insurance rates for the lawyer have soared - to as much as $1,000 per year.

The comprehensive volume gives a history of legal malpractice in this country, explains why litigation has increased, discusses the basic causes, and tells what the lawyer can do to preverTl malpractice claims. It also discloses the defenses available to the lawyer who is faced with a malpractice claim. One chapter gives valuable information about malpractice insurance.

The work is national in scope and reflects the reported decisions on legal malpractice from nearly all jurisdictions. The authors have tried to cover all types of legal malpractice, from failure to file legal papers on time and mistakes in securities transactions, to errors in the legal description of property, failure to research and know the law, and more. The authors, Ronald E. Mallen and Victor B. Levit, have had extensive experience in legal malpractice matters. Levit is a managing partner in the San Francisco and Los Angeles firm of Long & Levit. He is a specialist in legal malpractice problems and consultant to malpractice insurers. Mallen is a partner in the firm of Long & Levit and concentrates on litigation 2II/Arkansas Lawyer/January 1978

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~.!E ~ .."

survived the 1972 Amendments has responded in the affirmative, including the Fifth Circuit in Smith v. MN CAPTAIN FRED;". The Court held: "An employee may sue his employer qua vessel if he was injured as a result of the vessel's negligence." 80 The Court accurately noted that "the basic problem envisioned in YAKA is still present" despite arguments that the YAKA rule was interrelated with the sea· worthiness action predominant at the time of its inception and that since the 1972 Amendments had abolished that action they disposed likewise of the rule.8~ The Court was bolstered in its action by similar decisions in two other Circuits, the Third and Second, Griffith v.

Wheeling Pit/sburgh Siell Corp.," and Napoli v. Hellenic Unes, Ud.,83 respectively, which it noted. The Griffith opinion, which Napoli followed unquestioningly, contains a most extensive discussion of the Congressional intent reflected in the Committee Reports. The CAPTAIN FRED opinion likewise noted the most pertinent provisions in the House Report which "demonstrated that Congress intended the YAKA rule to sur-

vive.";84 "The Committee has also recognized the need for special provisions to deal with a case where a longshoreman... is employed directly by the vessel. ..notwithstanding the fact that the vessel is the employer the Supreme Court in Reed v. S.S. YAKA. ..held that the unseaworthiness remedy is available to the injured employee. The Committee betieves that the rights of an injured longshoreman...should not depend on whether he was employed directly by the vessel or by an independent contractor,' '85 VIII. CONCLUSION The most prominent development in the post-amendment tide is the almost exclusive dominance of land-based law in the longshoreman's negligence action against the vessel, presenting a dangerous coastal reef which promises to scuttle many plaintiff's claims. In deed, only a handfull of the many actions brought under these laws have brought, or shown promise of bringing, successful recovery. However, in view of the developing trend toward the liberal open and obvious rule with respect to landowner's liability, the application of land-based law may not be as strict as it could be. Most courts agree that the shipowner nevertheless retains some duty to provide a safe place to work, although the Fifth Circuit's view of this duty is the most restrictive one yet espoused.

That the YAKA employer who is also a vessel owner remains liable as a third

party despite the coverage of the Act now seems a clearly charted course.

The Courts have begun to achieve a fair degree of uniformity, as intended by the Act, despite the nearly wholesale rejection of maritime principles.

FOOTNOTES 'Act d OCtober 27, 1972, Pub. L No. 92-576, sections 1 el seq.. 86 Slal. 1263. emending 33 U.s.C. sections 901 el seq.

(1970).

233 U.s.C. 5ections 901 et seq. (1970). '!d.

033 U.s..C. 905. $J3 U.s.C. 933. il328 U.S. 85, 66 S.Ct. 812, 90 LEd.2d 1099 (1946).

1Unse8WOrthlnesa Is a tradltiooal maritime cause 01 action.

"Tne unseaworthiness Indemnity remedy was looked on as an American Inl'lOYatlon, which had perhaps been stimulated by tne English Merchants Shipping Act d 1876. which allowed such • f8C0Yefy. the Contioef1tal Codes restricted the seaman to his maintenance and CUI1l alone." Gilmore and Black, The law oj Admiralty. second Edition, page 276. ThIs warranty was specillcally recognIzed In 7he Orcaoll, 189 U.S. 158. 23 S.Cl. 483. 487 (1903). SM. generally, GeoI'ge.

Ship's lJabillty to Longshoremen Buecl Upon Uneeaworthiness - Sier"adll through Usner". Vol. 1. Joumal 01 Maritime Law and Commerce 45. OCIober. 1971: and George. "Shlp's LIability to Longshoremen Based Upon Unseaworthiness Sleracllllhrough Usner", Yol. 19, Louisiana Bar Journal 111.

1971.

1350 U.S. 124. 76 S.CI. 232. 195e A.M.C. 9. (195e) 'See, e.g.• NIemI v. Der NorIIW AIrllr.a-Og., 332 F.2d 651, (2nd Clr. 1964).

'OMOIt signillcanUy: 33 U.s.C. sections 902. 903 and 905 (Supp. 1912).

1133 U.s.C. 905(bJ (Supp,. 1972). ll$tdth v. MN CAPTAJN FRED, S46 F.2d 119 (5th e1r. 1977): a.y v. OC.." Trampart & 7r«1lrlg, Inc.• S46 F.2d 1233 (5th Clr. 1977); Brown v. MIr.ubWII Shlnlaku Olnlr.o, 550 F.2d 331 (5th Clr. 1977).

1:lQ. Gilmore and C. Blacll, The Law 01 klmlralty. 452-55 (2d Ed. 1975). '"Benedict on Admiralty, 5ec:ions 111-118, 1'9. 6-128. (7th Ed. Jhlrad). as.Rep. No. 92·1125, 92d Congress. 2d 5esslon (1912) (hereinafter cited as S.Rep.): H.R. Rep. No. 92·1141. 92d Congress, 2d 5eulon, 3 US Code Cong. & AdmIn. News p.

4703 (hereinafter cited as HR. Rep. - US.C.CA.N.). The House and Senate Commlnee ReportS are SlJbstantlailly identical. Ylck8fY. Some Impacts of the 19n Amendments to the Longshoremen and Harbof Worf(eB' Compensation Act. 41 Ins. C.J. 63. 64 n. 4, (1974) (hereinafter cited as Yiclotery). ltH.R. Rep. _ U.s.C.CA.N. 'upra note 15 at 4703.

"Id. at 4705. liid. at 4704. ltld. at 4702. :!Old. al 4703.

Vld. 81 4705.

22385 F. Supp. 844 al 651. (N.D. cal. 1974). ~ErM R. Co. v. Tot7IpkJra. 58 S.CL817. 304 U.S. 64, 82 LEd. 1188. (1938).

2-0386 F. Supp. 1105 (0. of Or.. 1974). ~ S.C!. 341, 381 U.S. 314, 4 LEd.2d 305(1960).

2flMOf~ne v. St. . . Marine l..JtMe, Inc" 905 S.CI. 1m, 398 U.S. 375. 28 L.Ed~ 339(1970).

27 119 U.s. 199, 7 S.CI. 140 (1886). aSoufhtm P«:1ffc Co. v. .IenIen, 2<44 U.s. 205. 37 S.C!. 524 (19m.

2f38O F.Supp.222 (E.D. Tel(, 1974). :IOld. at 226.

"545 F.2d 854 (3rd Cir. 1976). »10. at 863. :D'J58 US. 625, 79 S.CL 406, 3 LEd.2d 550 (1959). :Da 554 F~ 1237 (3m Or. 19n).

S3b 554 F.2d 1237 at 1246. ""c 554 F.2d 1237 at 1246S3d 554 F.2d 1237 al 1247. "'546 F.2d 1233 15th Clr. 19m.

3G1d. a, 1238. :lIQ/«:one v. c.prlcom ShIpping, 394 F.Supp. 1189 (S.D. Tex. 1975).

V54SF.2d 854, at 881,Q. al(ennar.c v. eomp.gm. G.,..el Tramallant/que, 358 U.s. 625, 70 S.CL G, 3 L-€d.2d 560 (1956). ald. at 830-32. 409.

OGH.R. Rep. - U.S.C.CA.N., IUpt'e note 15. at 4699, 4702-

~1

F.Supp. 1143 (0. MD. 1975).

*394 F.$upp. 1092 (O.Md. 1975).

01:)Jl F.Supp. 1143. 1146.

"391 F.5upp. 1143. 1148. "'Peculiar rlsk doctrine places a duty upon s pEHSOn who employes an Independent contlW:tOl'. to take special precautions. due 10 tne lact that the work performed by the independenl contractor is likely to create. during Its progress. a peculiar unre8500able risk 01 physical harm to ot!'lefs.

-'0391 F.Supp. 1143, 1149-60.

51391 F.Supp,. 1143, 1145. uRobertlOn, Negligence Actions by Longshoremen Against Shlpo.yners Under !he 1912 Amendments to the Longshoremen and Harbor Workers' Compensation Act, 7 J. Mar.L&C. 447 (1976). also. Roberlson. "Jurisdiction Shipowner Negligence and Sl8llectore Immunities under the 1972 Amendmenls to the Longshoremen's Acl", Mercer Law AeYiew, Yol. 28, Winter 19n, Number 2.

53391 F.Supp. 1143 (D. Md. 1975). ~ F.2d 757 (4th Clr. 1976). ~ F.2d 505 (2nd Cir. 1978). )tid. at 508.

51/d. ~ 546 F2d 1233 (5th Cir. 1977). ~Id. al 1238.

1IOH.A.Rep. _ U.S.C.CAN. 4705.

11545 F.2d 854 (3rd Cir. 1976).

1JiI1d. at 863-64, n. 10.

128 Hess II. L/ppef Mississippi Towing Corp. /lb. 75-4353 (5th Cl,. sept. 23, 1977).

see.

"" !d.

Uo !d.

IJiId /d.

6JH.R.Rep. _ US.C.C.A.C., supt, oote 15, at 4699. "&own V. Mhsubl&h/ ShltllMu Glnlr.o. 550 F.2d 331, (5th Gir. 1977).

I6Marant V. Farrell Unes, Inc.. 550 F.2d 142 (3rt! Clr. 1977).

-379 F.SUpp. 759 (E.O. Penn. 1974).

111d. at 7l1J. w.385 F. Sopp. 844 at 653 (N.D. cal. 1974).

F.2!l 211 (5th Gir. 197:1).

I14n

7fJ1d. at 213.

1'382 F. Sopp. 4 (E.D. La. 1974). nld. at 6.

13546 F.2d 1233 (5th Clr. 1977). told. al 1239. ~R.

U.s.C.C.A.N. 8t 4705.

V. Mhsublsh/ ShltllMu Glnlr.o, 550 F.2d 331, (5th

Rep. _

"Brown Cir. 1977).

11, Hess V. Upper Mississippi Towing Corp. No.75-4353 (5th

Cir. Sept. 23, 19m.

"" !d.

T7Maram v. Fmefl Unes, Inc .. 550 F.2d 142. (3rd Gir. 1977). na Hurst V. 7rlM1 Shlppirlg Co. 554 F.2d 1237 (3rt! Clr. 1977) 81 page 1248. l1b 554 F.2d 1237 (3rd Clr. 19n). l1C /d. at 1250.

11d Munoz V. FloflJ MfHCharte GrancoJombfMla. 553 F.2d 837 (2nd Clr. 19m. ne /d. 81841. nl/d.

11373 U.S. 410 (1963).

1t546 F.2d 119 (5th Clr. 1977).

IOld. at 123.

Illd. at 121. ~1 F.2d 31 (3rd Cir. 1975), cert. denied. 423 U.S. 1054.96 S.C!. 785, 46 L.Ed.2d 643 (1976).

13536 F.2d 505 (2nd Cir. 1976).

"546 F.2d 119. 123I&H.R. Rep. - US.C.CAM. 8t 4698, llootnotes omItted).

(Editor's NOTE: - Coincidenlly, after this article was selected for publication, Chairman Gordon S. Rather, Jr. of the Arkansas Bar Association's Maritime Law Committee proposed a related LHWCA seminar. The seminar has been scheduled for Friday, December 9, 1977 at Ihe Worthen Bank Building, Utile Rock. Interesled lawyers should plan 10 aNend.) ~

~

"380 F.Supp. 222 at 226. see also text at note 29. ~ F.Supp. 4. (E.D.La. 1974). ~ F.$upp. 844 (N.D. caL 1974). ""see Fllzp.,aJd V. CompattIa Navlere ~ MoHnwe, 394, F.Supp. 413 at 415 (E.D. La. 1975), wh8fe Judge Rubin aald that "Congress hal manllested Its intention that a IIndlng 01 negligence requires. ahowlng of the kind of negligence that has been millonal In land elMS rather than the very liberal criteria lor Jones Act negligence."

January 1978/Arkansas Lawyer/25

Longshoremen. .. continued from page 23 gress decided "that the primary duty to provide a safe place to work is on the stevedore...Courts should recognize that this duty falls primarily on the stevedore and not on the vessel owner",57 The rationale for the imposition of such a primary obligation was discussed by the court in Ramirez v.

Toko Kalun K.K.: "The primary responsibility for the safety of the longshoremen lies with the stevedoring company. It is in the position best to provide for the safe unloading of the cargo. The stevedoring company is hired for its expertise in handling cargo safely and its personnel make all of the decisions as to how best to conduct the unloading.....

This shift of the duty is a change from the pre-1972 state of the law under which the vessel had a non-<lelegable duty to provide a safe place to work. As the case law now indicates, that duty has been shifted primarily to the stevedore, the vessel being held to the duty only of turning over the ship in a condition reasonably safe for use by the stevedoring company. In Brock v. CorsI Drilling, Inc.,'. the Court of Appeal for the Fifth Circuit stated that such a change "prevents a shipowner from being liable for injuries which are really the fault of the stevedore. 70 The most common statement of the consequence of breaches of duties owed by the stevedore as they affect the owner is contained in Crowshaw: 71 "The shipowner is not liable for dangerous conditions created by the stevedore's negligence while the stevedore has exclusive control over the manner and area of work. "72 This language was confirmed in Gsy v. Ocesn Trsnsport & Trading, Ud. 73 Gay argued that the vessel was liable since a federal safety regUlation had been violated. The Court considered such a position tantamount to imposing

a non-<lelegable dUty of providing a safe place to work and rejected it because ..this (was) exactly the type of liability without fault concept from which Congress sought to free vessels by the passage of the 1972 Amendments.""

The Coun held that any violation of the safety regulations involved was sotely on the part of the stevedoring contractor and a holding for the shipowner resulted.

Nevenheless, some cases correctly recognize that the vessel owner is still obligated to some extent to provide a safe place to work. In this respect the Committee Repons dictate: "Permitting actions against the vessel based on negligence will meet the objective of encouraging safety because

the vessel wilt still be required to exercise the same care as a land based :M/Art<ansas Lawyer/January 1978

person In providing a sefe place to work." (Emphasis added)."

Confusion exists chiefly in regard to the extent of the remaining duty in providing a safe place to work. As this duty has been associated traditionally with the dUty to provide a seawonhy ship, some couns have concluded flatly that no such duty exists. Others have stated it exists on a reduced scale. Two

cases have flatly stated that a duty to provide a safe place to work does not exist. These cases, Crawshaw and Ramirez, are wrong in SO holding as they have obviously confused the dUty in general and equated it with the doctrine of unseaworthiness.

Brown v. Mitsubishl Shintsku Ginkol' is the latest expression of the Fifth Cir-

cuit on this question and, it is submitted, an unfortunate one, as well. The Court

there held "there could be no dUty owed by the ship to (plaintiff) as a matter of law, even If the ship's crfNI was aware of the danger' ...., where a showing could be made by the shipowner that: "(1) the hazard was solely the product of the stevedore's work on the ship and "(2) the ship's personnel were far less capable of correcting the situation than the stevedore's own employees, who knew about the danger and refused to rectify it - ".

Had Congress intended this resul~ it is inconceivable that it would have placed such substantial emphasis upon the duty of the vessel "to exercise the same care

as a land-based person in providing a safe place to work."

The Third Circuit has recently handed down a similar decision in Marant v.

Fsrrell Unes, Inc." Had Congress intended this result it is inconceivable that it would have placed such SUbstantial emphasis upon the duty of the vessel "to exercise the same care

as a land-based person in providing a safe place to work." This has apparently now been recognized by the Fifth Circuit in its latest decision, Hess v. Upper Mississippi Towing Corp.I'a in which the coun held that the vessel is still under a land-based law duty to provide its invitees with a safe place to wone The Court observed, in correctly distinguish.

ing the maritime strict liability concept of unseawonhiness from the land-based duty to provide a safe place to work: "To the extent that doctrine (the duty to provide invitees with a safe place to

work) encompasses liability without fault. a maritime concept. it no longer

applies under 905(b). The doctrine does however have land-based cou nterpart based on negligence." 76b The Third Circuit has recently handed down two similar decisions. In Marant v.

Ferrell Unes. Inc." The Third Circuit held that "the primary responsibility for longshoremen's safety was on the steve-

dore" and that it was error for the district coun to have charged the jury that the responsibility rested "jointly" with the stevedore and the shipowner. Consistently with its decision in Marant, the Third Circuit has refused to apply Section 318 of the Restatement (Second) of Tons which would "impose upon the shipowner a duty constantly to oversee the stevedore's method of operation in order to prevent any dangerous condi路

tions created by the stevedore from threatening the stevedore's own em-

ployees or others.""a In Hurst v. Triad Shipping CoJ7b the Court rejected application of Section 318 and adopted instead the general rule of Section 409, that "the employer of an independent contractor is not liable for physical harm caused to another by an act or omission of the contractor or his servants." In the Third Circuit's view, a shipowner "can-

not be held liable for the stevedore's unsafe method of operation, ""c under the general rule of Section 409 of the Restatement (Section) of Torts.

The Second Circuit has also rendered a recent decision in this area in confor-

mity with the views expressed by the Third and Fifth Circuits. In Munoz v.

Flota Merchsnte Grancolombisna"d the Second Circuit held that "a shipowner cannot be liable in damages when he relinquishes control of the hold, then in a reasonably safe condition. to an experi路

enced stevedore...and the s1evedore's negligence creates a latent dangerous condition unknown to the owner, upon which a longshoreman is injured.77e The

Court refused to impose a dUty on the vessel owner to discover and correct

"hidden defects" because to do so would "ri5l芦s) return to the concept of liability without fault. ..which Congress SO emphatically and recently rejected."f VII. THE EMPLOYER AS SHIPOWNER OR OWNER PRO HOC VICE AND VICE VERSA As it did before the 1972 Amendments, the Act provides that the liability of an employer "shall be exclusive and in place of all other liability of any employer to an employee." The exception to that promise of exclusivity. which applied to impose liability In ton against an employer who was also the owner of the vessel, derived from and is commonly

known as the rule of Read v. The SIS YAKA!' The YAKA rule was developed during the Sieracki-Ryan period to treat equally those employees injured upon vessels regardless of whether they were employed through a stevedore or directly by the vessel. Under the rule, a longshoreman could sue a vessel owner who was also his Compensation Act employ路 er in every case where the same vessel

could be liable if not his employer. Every appellate cou rt which has considered the question of whether the YAKA rule

The Napoli Court was persuaded that obviousness of danger alone should not relieve a defendant of responsibility for unreasonable risks where it was the shipowner and not the invitee who was

"the person able to anticipate and prevent harm from the obvious danger or premises under his control." The Court

felt that the strict rule, which was "really a commingling of the doctnnes of negligence, contributory negligence. and assumption of risk" was particularly in-

appropriate in this context, which by the clear language of Congress should be gOllerned by comparative negligence and not allow assumption of risk as a dafense. The Court then quoted and apprOlled of the newer section 343(A) of the Restatement of Torts, Second, emphasizing its proviso. which it felt was "illustrative of the 'more modern trend of opinion'... The fact that "there was evidence from which a jury might conclude that the ship should reasonably have anticipated that Napoli would not be able to avoid the danger despite its obviousness" and that "if this was the only place for Napoli to ...carry out his job, the vessel might reasonably anticipate that he (Napoli) would use it despite its obvious danger" seems also

to have mOIled the Napoli Court.

The Napoli case significantly liberalizes the longshoreman's right of recovery and broadens the shipowner's duty and the logic of the Court's opinion, similar to that which moved the American Law Institute to revise Section 340 of the First Restatement into the fonmula of section 343 and 343(A), is persuasive.

The admiralty comparative negligence concept, as the court reasonably recognized, brings additional force to the argument for the liberal rule.

The Fifth Circuit followed the Anusz8Wskl and Napoli decisions in Gay v. Ocaan Transporl & Trading, Ud." The Court was mOIled "in the interest of fulfilling the Congressional desire of unifonmity" and adopted the Restatement approach oullined in section 343(A)." In 50 doing, the court seems to have overruled sub silentio many lower court decisions in the circuit which had begun to establish a trend in the other direction.

Unlike the second and Fourth Circuits, the Fifth Circuit had not been aided by a lower court decision previously adopting the liberal approach. The Court in Gay expressly confirmed the Napoli reasoning that the strict open and obvious rule bore too great a resemblance to the defenses of assumption of risk and contributory negligence which Congress had indicated were inappropriate in this area. 5O

V, THE SHIPOWNER AS EMPLOYER OF AN INDEPEND£NT CONTRACTOR AND LIABILITY FOR PECULIAR RISKS The Third Circuit in Brown v. fvarans Raderl, AIS," rejected Section 416 of the Restatement as inapplicable against the vessel owners as third parties under the Longshoremen and Harbor Workers' Compensation Act because that Section appears to be based on a concept of vicarious liability, without fault, in situations involving a "non-delegable" duty.52. section 416 is the Restatement expression of the "peculiar risk doctrine," applied as one of many exceptions to the "general" rule that an employer of an independent contractor is not liable for injuries resulting from the activity or negligence of the contractor's employees. This doctrine had earlier been rejected by the Anusz8Wskl Court on two grounds. The Court observed that stevedoring, in the ordinary sense, should not be seen to involve "peculiar risks" as that term is used in the Restatement provision. Secondly, the Court found, assuming that the unloading of ships is per sa a peculiar risk, longshoremen Involved in that activity should not be regarded as "others" whom the prOllision is designed to protect by imposing liability.

In its very recent decision in Hess v.

Upper Mississippi Towing Corp. 52a the Fifth Circuit rejected the application of land-based rules of law which would impose liability on the employer of an independent contractor, for the latter's neg ligence, in situations in which the work undertaken involves an "ultrahazardous" or dangerous activity. The plaintiff in Hess, who was the employee of an independent contractor, (the stevedore), sought to rely upon sections 411, 413, 416, 423, and 427 of lhe Restatement of Torts (second), all of which, like section 416, are exceptions to the "general" rule that an employer is not responsible for the negligence of an independent contractor. The Court held that the plaintilf could not base his action on these sections of the Restatement because they "only impose liability with respect to third parties." 62b Using the same rationale as that used by the Anusz8Wskl Court, the Fifth Circuit was of the view that the employees of an independent contractor were not "third parties" to whom the cited sections were intended to afford protection. The Court stated: "The purpose of imposing a duty of care on the employer of an independent contraclor is to insure that his enterprise will bear the cost it creates and will not escape liability for mishandling of inherently dangerous work by delegating It to an independent contractor...the employer's

liability should not encompass injuries to the employees of the independent contractor because, under workmen's compensation laws, the contractor is already strictly liable for their C051. ...2C Thus the employees of an independent contractor are already protected by a workmen's compensation law, in this case, the Longshoremen's and Harbor Workers' Compensation Act, and had no need for the further protection offered by the Restatement exceptions to the general rule. As the Tentative Draft of the Restatement (second) of Torts submits, as quoted by the Fifth Circuit: "It is to be expected that the cost of the workmen's compensation insurance will be included by the contractor in his contract price for the work, and so will in any case ultimately be borne by the defendant who hires him. "82d VI. PROVIDING A SAFE PLACE TO WORK - RESPONSIBILITY OF SHIPOWNER OR STEVEDORE? The Committee Reports rather clearly delineated the safety objectives behind the passage of the 1972 Amendments: "(A)dequate workmen's compensation benefits, - •• by assuring that the employer bears the cost of unsafe conditions, serve to strengthen the employer's incentive to prOlllde the fullest measure of on-the-jOb safety. " ...It is the Committee's view that every appropriate means be applied toward improving the tragic and intolerable conditions which take such a heavy toll upon workers' lives and bodies in this industry and such means clearly include vigorous enforcement of the Maritime Safety Amendments of 1958 and the Occupational Safety and Health Act of 1970, as well as a workmen's compensation system which maximizes the industry's motrvation to bring about such an improvement"63 Several cases have passed upon the nature of the duty imposed upon stevedores under the amendments.

Such a dUty is very important in determining exactly what duty, if any, the vessel has breached in a given accident If the negligence which causes the injury was a breach 01 a duty owed only by the stevedore, obviously the vessel will not be chargeable with actionable negligence under 905(b). Recent decisions of the Fifth Circuit&' and the Third Circuit65 make it clear that the duty to provide a safe place to work is almost exclusively the stevedore's, a result, it is submitted, never intended by Congress in enacting the 1972 amendments to the Act. It has been held in Lucas v.

"Brlnknes" Schlffharls Gas." that Con-

continued on paga 24 January 1978/Arkansas Lawyerl23

Longahoremen, , . continued from page 21

mittee Report, upon which the Circuit courts have relied so heavily, should be interpreted narrowly since they reflected only the concern of Congress to do away with the peculiarly maritime seaworthiness duty and did not require the wholesale incorporation of land law.36 This argument has not been persuasive. The Gay, Napoli and Anuszawskl courts did not even meet it. Brown v. IvaTans, the only decision applying maritime law, does so without explanation. The Brown court was careful to reject the application of state law in interstitial areas because of the Committee emphasis, as well as that of the general maritime law, upon uniformity. Perhaps a similar subconscious

reasoning

prompted

its

refusal to consider land law. it Is not impossible, however, to apply general principles, such as those embodied in the Restatement, to effect a harmony among the circuits as the concurrence

of the second, Fourth and Fifth Circuits demonstrates. Restatement of Torts, second, section 343 and section 343A, now applies in all of those circuits and this standard compares favorably with the less precise Kermarec36 standard of "reasonable care under the circum-

stances"" in its capacity to promote even results.

The problem has centered, however, on Just how far a shipowner may be immune from liability for dangers which are "open or obvious", as landowners

effectively are, in view of the intended purpose of the Act to maintain the shipowner's incentive to promote safety.40 IV. THE SHIPOWNER'S LIABILITY FOR OPEN AND OBVIOUS DANGERS

In the Hlle case, the coUrt attempted to divine a consensus of the law of the various maritime states in connection with the body of Federal law developed in third-party litigation involving vessel owners prior to Sieracki. The Court formulated its rule in these terms: "The owner of a premises who corr-

tracts with an Independent contractor (business Invitee) to perform services for the owner upon the owner's premises owes a duty to the independent contractor and his employees to exer路

cise reasonable care to have the premises in a reasonably safe condi-

tion for use by the independent contractor and to give said contractor warning of any concealed or latent defects that are known by the owner

and not by the independent contractor.

The owner of a premise is under no dUty to wern the independent contractor or his employees of dangers or open end obvious defects which are known to the Independent contractor or his employees or which could be

22/ArI<ansas Lawyer/January 1978

readily observed by said employees in the exercise of ordinary care. "41 Similar results have been reached in numerous post-Amendment cases, including Fedlson v. The Vessel Wlslicr 2 and Ramirez v. Toko Kalun K.K.43 Under the Fedlson Court's view of the "open and obvious" land-based rule, a holding for the shipowner results, without further inquiry, when the danger is shown to be open and obvious or known to the victim....

Thus, many of the early new Act cases in the District Courts viewed section 343 of the Restatement of Torts narrowly and held for the shipowner without further inquiry when the danger was shown to be open and obvious or known to the plaintiff.

An increasing number of decisions,

its obligation to take further precautions to remedy a danger; a mere warning may not suffice. "50 The Frasca opinion sets out the follow-

ing distillation of the land-based rules, adopting the modern view: "In summary, under the modem view,

the landowner will be liable to his invitees, for his failure to exercise reasonable care to protect them

against a dangerous condition of the land if: "(1) The owner knows of the condition or should know of it in the exercise of reasonable care; and "(2) The owner should realize that the condition involves an unreasonab~ risk of harm to invitees; and

"(3) The owner (a) should expect that an invitee will not discover or realize the danger, or (b) if the danger is known or obvious to the invitees,

however, would impose liability upon the shipowner if It should have realized that despite such knowledge or obviousness the longshoreman would not be protected or would not protect himself. This line of thought is typified by Anuszewskl v.

Dynamic Mariners Corp. PanamlJ'5 and Fresca v. Prudentlel Grace Unes, Inc." In Anuszawskl, the Court found for the shipowner, holding that it was not foreseeable to the shipowner that the longshoremen would not protect themselves against the open and obvious condition involved. But, in so holding, the Court applied section 343(A) of the Restate-

should expect that they will not protect themselves against It or should otharwise anliclpale the harm desplle such knowledge or obviousness."

Restatement (second) of Torts, secs.

343, 343(A) (1965)." (Emphasis added)" Indeed, the liberalized modem rule seems more compelling even on strictly logical grounds. In his excellent article on this subject, Professor Robertson of the University of Texas Law School points up the conflict between earlier de-

ment 41

cisions adopting a narrow construction

A possesor of land is not liable to his Invitees for physical harm caused to them by any activity or condition on the land whose danger is known or obvious, unless the possessor should antlclpale Ihe harm desplle such knowledge or obviousness." (Emphasis added) The Court made it clear that the exception to the strict open and obvious rule would not protect the longshoreman on the Anuszewskl facts as "the presence of the unfastened beam was a

of the rule and the Committee Reports' express direction that the defense of "assumption of risk" will not be available to the shipowner in new Act cases.

most evident and continuing condition

which may have been largely Ignored by the longshoremen but hardly entirely forgotten."". Also distinguished was the "pecUliar risk" doctrine," the Court noting that If there was a "pecUliar risk" in this factual context, it was posed not by the nature of the unloading duties, but by the beam itsell - the offending condition.

In Fresce, one of the better-reasoned

opinions among the new Act cases, the Court observed that the restrictive view of the landowner's duty contained in section 343 of the Restatement of Torts, second, "has eroded In many states with the passage of time." It further observed that the so-called" 'modern view' of the owner's duty Is that the obviousness or knowledge of the danger by the plaintiff does not necessarily relieve the owner of

In his view, the "modem view" is more

appealing and eliminates some of the direct conflict which arises between application of the strict "open and obvious" rule and the Committee Reports' direction that the defense of assumption of risk will not be available. 52 A shift to the more liberal modem rule is clearty discernible in the first wave of appellate court decisions. The Anuszew路 skf53 decision has been affirmed in a per curiam opinion by the Fourth Circuit Court of Appeals." The second Circuit in Nepoll v. (Trenspaclflc Carriers, etc.)

Hellenic Unes," overturned a District Court decision in which the jury had been instructed to apply the "traditional rule of land-based negligence...that there is no obligation to warn an invitee

of dangers which are known to him or which are so obvious that he may reasonably be expected to discover them himself."" The second Circuit panel stated: "(W)e do not think that instructions which flatly negate the dUty to protect against obvious danger properly portray the present-day obligations owed by a landowner to one whom he invites upon his premises."57

(citations omitted)..."

"The vessel will not be chargeable with the negligence of the stevedore or employees 01 the stevedore. "20 The negligence action under consideration does, however. envision the

application of certain principles of maritime law: "In that connection, the Committee intends that the admiralty concept of comparative negligence, rather than the common law rule as to contributory negligence, shall apply in cases where the injured employee's own negligence may have contributed to causing the injury. Also, the Committee intends that the admiralty rule which precludes the defense 01 assumption 01 risk...shall also be applicable.""

II. THE SOURCE AND SUBSTANCE OF THE NEGLIGENCE STANDARD EMBODIED IN AMENDED SECnON 5 The question of sources from which tile so-called land-based standard is to be derived was initially a most troublesome one in the cases. It is rather clear that, as stated in Ramirez v. Toko Kalun K.K.,'12 a "court must not be bound by the law of any particular state". This is true, notwithstanding the Erie23 doctrine, in view of the congressional mandate that the negligence standard 01 Section 905(b) be determined as a matter of Federal Law. An attempt was made to invoke state law standards in Birrer v.

Flota Mereante Grancolomblana" on tile theory that the nalional standard imposed by Section 905(b) was merely a minimum one which left courts free to apply S1ricter S1andards 01 state law. The plaintiff sought to use the very strict duty imposed on employers by the Oregon Employers' Liability Act which had been applied in Hess v. United States." The

court correctly distinguished Hess as a case 01 the pre-Moragne>< era which saw Federal Courts adopt state remedies for wrongful death in order to circumvent the awkward rule 01 The Harrisburg." barring such actions under admiralty common law. It instead emphasized the well settled Jensen principle which mandates uniformity in maritime law. 28

In one 01 the early cases passing upon the subject, Hlte v. Maritime Overseas Corporation," the district court decided that the body 01 Federal law developed in pre-amendment cases involving thirc~ party actions combined with a "consensus of the law of the various maritime states" constituted the proper source.

The district court stated "that Congress clearly intended third-party suits to be governed by uniform land-based negligence concepts" with certain maritime law exception.30

The initial tide of appellate court decisions confirms for the most part the lower court trend which accumulated in

lavor of the application ot land-based law. Only one 01 the four circuits which have considered the problem has referred to maritime sources of negli-

gence law rather than land-based law. In Brown v. Ivarans Rederl AJSlI the Third Circuit refused to liken the shipowner to an employer 01 a subcontractor governed by Section 416 01 the Restatement of Torts, Second. Its view was that the proper source 01 authority lor tile 905(b) negligence action were those principles

"adopted in the admiralty lield"32 and exemplified by Kermarec v. Compagnie

General Transar/ant/que. 33 However, in its most recent decision,

Hurst v. Triad Shipping CO.,33a the Third Circuit has agreed that "Congress intended land-based principles to apply"33b to the 905(b) negligence action.

The plaintiff in Hurst had urged the Court "to apply the standard (of negligence)

embodied in maritime negligence cases ... decided before the 1972 amendment of Section 905(b), which analyzed the tort on the basis of the shipowner's 'non-delegable dUty' to provide a sale workplace lor longshoremen..."33C This the Third Circuit declined to do, observing, without expressly overruling Brown, that it was " ...obvious, ... , that the traditional, expansive maritime tort liability is

not. ..to be judicially imported into Section 905(b) under the guise of 'nondelegable dUty' or 33d any other synonym lor liability without lault."

The Restatement has fared better in the other circuits. The Fifth Circuit in Gay v. Ocean Transport & Trading, Inc. 34 summarized the situation (with no relerence to Brown) thusly: "(T)he Second and Fourth Circuits have already faced the problem before us and have agreed that land based principles are to guide.. .Anuszewskl v. Dynamic Mariners Corp., 540 F.2d 757 (4th Cir. 1976); Napoli v. Hellenic Unes, Ud., 536 F.2d 505 (2nd Cir. 1976). Moreover, those circuits have both relied upon the Restatement (Second) 01 Torts...we, too, adopt the Restatement formulation. "35

There seems to be little doubt that the application of land-based law, as dictated by Gay, Napoli and Anusz_skl will continue to dominate the Section

905(b) negligence action. The courts have analogized tile shipowner to the owner of land and looked to the Restatement provisions which set out the landowner's duty to an invitee in order to describe the shipowner's obligations to a longshoreman. This seems a generally reasonable. if sometimes difficult and

even tortuous, approach to the problem.

It was early suggested that the references to land-based law in the Com-

continued on page 22

James A. George Is a member of the Baton Rouge, Louisiana firm of George and George, Ltd., and the Jennings, Louisiana firm of Arnette and George.

He is a member of the Baton Rouge, Jefferson Davis Parish, Louisiana and American Bar Associations, and is also a member of the Southeastern Admiralty Law Institute and the Maritime Law Institute of the United States. He selVes as Chairman, Committee on Continuing Legal Education, Louisiana State Bar Association. The author gratefully acknowledges the excellent assistance of Mr. Vince DeSalvo for his Invaluable assistance in preparing this Article.

January 1978/Arkansas Lawyer/21

THE CONTENT OF THE NEGLIGENCE ACTION BY LONGSHOREMEN AGAINST SHIPOWNERS UNDER THE 1972 AMENDMENTS TO THE LONGSHOREMEN AND HARBOR WORKERS' COMPENSATION ACT

By James A. George Admiralty lawyers, like ship's captains, do well to watch closely the tidal changes in their respective seas since the sea of admiralty law shifts and swells no less than its geographical counterpart. Recent cases under the 1972 Amendments' to the Longshoremens and Harbor Workers' Compensation Act,' like a swiftly falling gUlf tide, have exposed new areas of "land law" upon which the unwary may founder and have revealed currents of which the watchful may take advantage. This article attempts to chart the judicial reefs and currents created by the 1972 Amendments affecting the negligence action by a longshoreman against a vessel.

I. HISTORICAL BACKGROUND Section 5 of the original compensation Act' provided that an employer's liability for compensation was to be "exclusive and in place of all other liability" to an Injured longshoreman. The Act also provided that an employee could recover from a third person if his negligence was the cause of the employee's injuries,' and that the employer paying the compensation had a lienS on the recovery obtained by the employee in such an action for the amount of compensation he had paid. Seas Shipping Company v.

S/erack/6 added a new twist by allowing a longshoreman to recover from a shipowner under the then newly revived doctrine 01 unseaworthlness.7 Ten years later, the Supreme Court held In Ryan Stevedoring Co. Inc. e. Pen-Atlantic Steamship Corporation,. that a shipowner could recover for any amount he was forced to pay on a Sieracki claim because of an implied warranty of workmanlike service running from the stevedore-employer to the ship-owner.• The third party action- indemnity circle created by Sieracki and Ryan effectively eliminated the exclusivity provision which was the quid pro quo initially given to the stevedores in the passage of the Act. The stevedoring industry sought legislative relief and was successful, when in 1972 Congress passed the Amendments under discussion in this article. Victory for the stevedores was embodied in a new provision prohibiting Indemnity

from stevedore to shipowner for losses from longshoreman Injury on the ship.

Shipowners consented because the

2ll/Arkansas Lawyer/January 1978

amendments relieved them from the

heavy warranty of seaworihiness with respect to longshoremen and longshoremen agreed to these legislative concessions in return for a much higher

scale of compensation benefits.

This article will address only one of the several significant changes wrought by the 1972 Amendments'. - the content of the negligence action against the ship under Section 905(b) with which longshoremen are left after the abolition of the seaworthiness action previously existing in their favor '1 - by examining the first wave of cases under the new

(EDITOR'S NOTE: James A. George Is a noted author of arllcles on maritime law. This article first appeared In the Louisiana Bar Journal (June, 1977). We appreciate the permission of the Louisiana State Bar Association and Mr. George to reprint the article here. Mr. George has updated his arllcle to Include the latest 1977 cases.)

Section 905(b), including several recent decisions of the United States Court of Appeals for the Fifth Circuit which bear significantly upon this area.~2 II. THE COMMITTEE REPORTS - EMPHASIS UPON LAND· aAIED PRINCIPLES OF LAW Despite early arguments favoring the application of Jones Act principles 13 or General Maritime Law'" the judicial consensus has settled upon principles of land-based law as the mainstay of the longshoreman's remedy against ship-

owners. This result was foreshadowed by the many references to such principle in the senate and House Committee Reports" upon which recent decisions have relied heavity. Accordingly, it is in order to examine those Reports in some detail before proceeding to a discussion of the post- amendment decisions.

The ostensible purpose of the Amendments was "to place an employee injured aboard a vessel In the same position he would be If he were Injured In non-maritime employment ashore. inso· tar as bringing a third-party damage action is concerned and not to endow him

with any special maritime theory of liability or cause of action under whatever judicial nomenclature iI may be called, such as 'unseaworthiness', 'nondelegable duty', or the like."'.

The negfigence standard under the New Act is to be uniform and determined as a matter of federal law: " ...(Dhe Committee does not intend that the negligence remedy authorized in the bill shall be applied differently in different ports depending on the law of the State in which the port may be located. The Committee intends that legal questions which may arise in actions brought under these provisions of the law shall be determined as a matter of Federal Law." 17 The standard is to be derived from land-based standards of negligence, and is designed to establish the rights of both the longshoreman and the shipowner as the same set of rights and obligations obtaining in a similar land context: " ...The Committee intends that on the one hand an employee injured on board a vessel shall be in no less favorable position vis-a-vis his rights against the vessel as a third party than Is an employee who is InjUred on land, and on the other hand, that the vessel shall not be liable as a third party unless it is proven to have acted or to have failed to act in a negligent manner such as would render a landbased third party in non-maritime pursuits liable under similar circumstances,"'8

There Is to be no recovery under "liability without fault": "The Committee elso rejected the thesis that a vessel should be liable without regard to Its fault for injuries sustained by employees covered under this Act whife working on board the vessel."'.

The vessel will not be liable for the acts or omissions of the stevedore while he has control of the areas in which he Is performing his services: "Thus a vessel shall not be liable In damages for acts or omissions of stevedores or employees of stevedores subject to this Act. (citations omllted); or for the manner or method in which stevedores or employees subject to this Act perform their work,

In J짜lemortam They that be wise shall shine as the brightest of the firmament.

Daniel 12:3

AMIS A. GUTHRIDGE Amis R. Guthridge, native or Hot Springs, died at Little Rock on September 17, 19n at the age of 68.

He was graduated from the University or Arkansas and the Washington Law SChool at SI. Louis. He then began his law practice in 1951 at Little Rock.

He was affiliated with Capitol Citizens Council and White America, Inc. He served as attorney for White America until it merged with the Council In 1956.

Mr. Guthridge was a member or the Pulaski and Arkansas Bar Associations; Arkansas and American Trial Lawyers Associations; and a member or the Highland Heights Presbyterian Church.

Survivors include his wife, Ellen Parker Guthridge; two sons. Lawrence A. Guthridge, Little Rock, and Bob Guthridge. Pine Blull; a daughter, Jane New. Russellville; two sisters. Mary Ruth Arnold. Fort Smith, and Mrs. Roy Gardiner, Califomia; and six grandchildren.

JUDGE LAWRENCE NELL REED L. Neill Read, an earty pioneer 01 Clebume County. died OCtober 1, 19n at age 84.

Judge Read graduated from the University 01 Arkansas and attended Arkansas Law SChool belora entering WWI to serve as a naval aviator. Alter WWI, he graduated from Cumberland University School or Law and began his law practice in Heber Springs.

He heel served as district deputy prosecuting attorney In Heber Springs before moving to Blytheville where he served as Mayor. deputy prosecuting attomey and Justice or the Peace. Upon returning to Heber Springs. he served as city attorney lor eight years and in 1970 was appointed as municipal judge.

Neill Reed was a fifty-year Mason and a former Major in the Arkansas National

Guard. He served as the first commander 01 the saxton Willis Post No. 64 in Heber Springs; was state depanment commander of The American Legion and president 01 the Legion Auxiliary in 1941-<12.

He was a director of Veterans Employment in 1~7 and chairman or the Cleburne County Equalization Board. He was a senior law partner in the firm of Read & Reed and a member of the First United Methodist Church where he served on the Board of Stewards.

He is survived by three sons, Philip Neill Read, South Carolina; Ancil Mason Reed, Heber Springs; Geerge W. Read.

Little Rock; a daughter, Ruth Read Whitaker. Fort Smith; and a sister, Ella Robertson, Louisiana.

JOHN MAC SMITH John Mac Smith 01 West Memphis, senior vice president and general counsel of Cooper Communities, Inc., died September 6, 19n at age 66.

He was a 1934 graduate of the University of Arkansas Law SChool and member or Blue Key and Sigma Alphe Epsilon.

He served as a Colonel In the Army JUdge Advocate Corps during WWII and was a member 01 the American Legion.

Mr. Smith was one of the founders of the First National Bank 01 West Memphis and a member or the Board 01 Directors.

He was a director 01 the American Probate Council and was servi ng as a director 01 the American Land Development Association. He was a member 01 the American Judicature Society; American and Arkansas Bar Associations; and a Fellow of the American and Arkansas Bar Foundations. He had been a member 01 the Arkansas Bar Association's House 01 Delegates and served as member of its Executive Council from 1976.

Mr. Smith was a trustee of Crittenden County Memorial Hospital and cheirman or the hospital board in 1976. He served as director of the Arkansas Methodist Foundation and was a member of the First United Methodist Church.

He Is survived by his wife, Gladys Nance Smith; a stepson, Woods Wright.

Jr" Texarkana; a stepdaughter, Mrs. Jimmie Wright Donnan, Texas; and four grandchildren.

HENRY W. SMITH Judge Henry W. Smith of Pine Bluff, a former state representative, circuit judge and prosecuting attorney, died November 1, 19n at 88.

He received his law degree from the University of Michigan Law School and had attended Arkansas A & M, University of Arkansas at Fayetteville. and the University of Aberystwyth in Wales.

Upon his return Irom WWI, serving in France, Judge Smith first opened his law office in Star City in 1921. He represented Jefferson and Lincoln counties 10 the House 01 Representatives belore being elected prosecuting attorney in 1935.

Then in 1952, he was elected circuit jUdge for Jellerscn, Lincoln and Desha counties, serving until 1970. While prosecuting attorney, one of his deputies was Chief Justice Carleton Harris of the Arkansas Supreme Court.

He was a Mason, a Shriner, and a member of the American Legion, the Last Man's Club, the Arkansas Bar Association and the Lakeside United Methodist Church.

Survivors include his wife. Cora M. Woolf Smith, three sons, Edward T. Smith, Pine Blull, Henry K. Smith, Dallas and Lloyd R. Smith. Dumas: a brother, John I. Smith, Fayetteville; six grandchildren and three great-grandchildren.

"

January 1978/Arkansas Lawyerl1l

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Re:

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TO:

Members, Arkansas Bar Association

Gentlemen:

West's U.S. Code Annotated.

Current, with 1977 pocket parts.

Like new. William Reed, P.O. Box 327, England, Arkansas

of your Association thank you again for your help and concern.

72046 (501) 842-2316.

their schooling.

Your continuing response to the placement of young lawyers is most gratifying. The faculty at both law schools and the officers

We have found that there is better utilization of our new lawyers if they can secure a commitment by January in the last year of If you know of anyone who might need a new

lawyer next summer, we need to talk with you at this time.

LAW PRACTICE NOT PROFITABLE. $14.95 could remedy this.

Order: "How To Make Money Practicing Law" Sixth Ed. direct from Ivar Pu blications, Box 1855, Los Angeles, CA 90028.

Please call or write the undersigned or Ms. Susan Weber, Little Rock at telephone 371-1072 or Mr. Jim Miller in Fayetteville at 575-3102.

Sa;;~~

~~~ S'

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CJS SET A. Jan Thomas, Jr. P.O. Box 1368 West Memphis, AR 72301

cc: Mr. Walter R. Niblock Mr. James D. Cypert Ms. Susan Weber M.r. Jim Miller

(501) 735-7700

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WANTED TO BUY Glass front legal bookcases Globe Warneke or Luscomb need 20 sections with tops and bottoms for each five sections.

Hobbs and Longinotti, 500 Ouachita Avenue. Hot Springs, Arkansas 71901. Phone No. 6236666.

111Arl<ansas Lawyer/January 1978

POSITION AVAILABLE Tulane University seeks director to organize and administer developing paralegal program. Must be graduate of a recognized paralegal training program. Experience as a working paralegal required. Some previous administrative experience preferred. Salary commensurate with qualifications. Desired availability, as of January 1, 1978. Those interested should contact Dean Robert C. Whittemore, Tulane University, New Orleans, La. 70118. Phone: 865-4461.

An Equal Opportunity Employer.

HEAR YEt

HEAR YEt

The Arkansas Bar Foundation

The Arkansas Bar Foundation

YOU'LL HEAR FROM

MY LAWYER ABOUT THISI

a..-lIon: On his way home from school one day, Tommy, age eight, stops to play in the tree house in the big oak tree in the back yard of his friend Freddy. While crawling out the side of the tree house, Tommy slips and falls to the ground, spraining his ankle and breaking his sling-shot.

Freddy's back yard is not fenced and his parents know that the neighborhood children are inclined to play in the tree house. but do nothing to discourage it. Are they liable for Tommy's injuries?

a..-lIon: Old Spot was never known to hurt anybody, but spent most of his time sleeping under the front porch of his master. However, one day Ned Nabor walked by, minding his own business. Spot dashed from under the porch and gave Ned a fierce bite on the right foot, requiring medical attention. Is Spot's owner liable to Ned?

_.r:

_er: Probably not. Although the doctrine of "attractive nuisance" varies from state to state, almost all, including Arkansas, require that the dangerous condition which in-

Probably not. The owner's liability would stem from his

jures the child (1) be hidden from him and (2) be such that he could not appreciate it at his age. By age eight, Tommy is probably not a "child of tender years" in that he understands that if he fails from a great height, he wiil be injured. Additionaily, unless the fail were caused by something about the tree house he wouldn't know about (a loose board, a hidden trap door, etc.) the mere fact that the tree house attracted him up into the tree is not sufficienl to give the home owner responsibility.

leaving at large an animal which he know. to have dangerous tendencies. Unless Spot's owner knew or should have known that he was inclined to bite folks, he would not have to keep him penned up. However, if their town had a leash law, one of the express purposes of which was to prevent accidents such as that which befell Ned, the situation might well be different. Finally, Spot's owner would very likely be liable for any future bites if he took no steps to prevent them. "Every dog gets one bite" - but only one,

This feature presents general legal principles 8fld problems WId should not be taken as a legal opinion or advice, which e8IJ only be given by a lawyer alter considering all relevant facts and clrcumst8llces. Additional general information on a number of legal sub}sets Is, howavar, ..aHabia In pamphlat form wfthout charge. Inquiries in this regard should be addressed to: The

This feature presents general legal principles and problems and should 001 be taken as 8 Jegal opinion or advice, which eWl only be given by 8 lawyer after considering all relevant !ltCts and circumstances. AddltJonal general information on 8 number of legal subjects Is, however, available in pamphlet form whhout charge. Inquiries In this regard should be addressed to: The Ar-

Arkansas Bar Association, Arkansas 72201.

sas 72201.

4()()

West Markham,

unl.

Rock,

kansas Bar Assoc/Mlon. 400 West Markham. Utt/e Rock, Arkan-

January 1978/Arkansas Lawyer/17

â&#x20AC;˘

Editor's Commant: AEGIS Is a feature oftha Arkansas Bar Association's educational program concamlng dockaI control and other areas of high risk exparfence In professional liability cases.

SAFEGUARDING YOUR PROFESSIONAL FUTURE

Lost time is like a run in a stocking... it always gets worse!

111/Arkansas Lawyer/January t978

the problem

An insured attorney represented a husband and wife who had been injured in an automobile accident. The insurance carrier for the other motorist involved volunteered to take care of the medical expense but refused to pay for other losses or inconvenience because of the questionable liability in the accident.

The attorney submitted specials to the insurance company. A settlement offer was made but was refused by the attorney's clients. There was no further activity on the case.

Three years later the attorney conducted a review of his pending files and discovered the statute of limitation had run. It seems that a new employee in the attorney's office was not made tamiliar with his office procedures or diary control system and so the case had not been brought to his attention.

the result

The clients brought suit against the attorney for his failure to act in timely matter. Although there was questionable liability in the underlying case, the attorney was clearly liable tor his failure to act before the statute ran. A compromise settlement was made with the clients through the attorney's professional liability insurance carr:ier.

advice

When a change over in personnel involving any member of your staff takes place, do not assume that they are completely familiar with statutory requirements or your general office procedures or your diary control system. A thorough briefing of this new employee could have eliminated this problem.

HEAR YEI

HEAR YEI

The Arkansas Bar Foundation

The Arkansas Bar Foundation

IF EL£CTED, I PROMlSf...

c

••"

..• L

Que.tlon: Question: Betty Battered regularly sports black eyes, bruises, etc, oompHmoots of her husband Bert, who beats her when he feels like it.

She doesn't want a divorce, but friends tell her that's her only remedy. Are they right?

Carl Candidate, running against the incumbent Senator, characterizes the Senator in a press release as a "lazy. shiftless dandy who's never done a darn thing for this state." He also accuses the Senator of taking bribes from a certain Korean business man, which Carl Candidate knows is not true. The Senator sues for libel. Can he recover?

An.wer: An.wer: No. It is illegal to beat. up -.yoM, including wives (or husbands). Betty can have Bert arrested and charged with battery, and hope a misdemeanor conviction will bring Bert to his senses. Battered wives can get help in this regard by calling 6648834 or may contact their local prosecutor or JX)lice directly.

This feature presents general legal principles and problems and should not be taken as a legal opinion or advice, which CWI only be given by a lawyer atrer considering all relevant !acts and circumstances. Additional general information on a number of legal subjects Is, however, available In pamphlet form without charge. Inquiries in this regard should be addressed to: The Arkansas Ba; Association, 400 West Markham, Vttle Rock,

Arkansas 72201.

Despite the strong language, Candidate's unflattering characterization of the Senator is not actionable, being "falr comment" about a public figure and hence. free speech protected by the First Amendment. However, "falr comment" does not protect deliberate lies, and Carl Candidate CM be compelled to answer in court for his remarks about the non-existent bribe.

This femure presents general legal principles and problems and should not be taken as a legal opinion or advice, which can only be given by a lawyer after considering all relevant facts and circumstances. Additional general information on a number of legal subjects Is, however, available in pamphlet form without charge. Inquiries in this regard should be addressed to: The Arkansas Bar Association, 400 West Markham, Uttle Rock, Arkansas 72201.

(EDITOR'S NOTE: "Hear Ye!" represents a great opportunity for individual lawyers and local bar associations to contribute to the pUblic relations and public education efforts of the Bar. The Arkansas Bar Foundation, through the efforts of Chairman W. Christopher Barrier of its Public Education Committee, is making these "slicks" avaifable to local newspapers. In CONTEXT, at page 14, Chairman Barrier encourages other Arkansas newspapers to use the "Hear Ye!" column on a regular weekly basis. Someone needs to make the local contacts - why not the local lawyer and the local bar association?)

January 1978/ArI<ansas Lawyer/15

CONTEXT

By W. Christopher Barrier Chairman, Public Education Committee Arkansas Bar Foundation

THE GUARDIANS GLORY AND GRIT...

The Arkansas Bar Foundation has commissioned a series of photographs depicting various aspects of law enforcement in Arkansas - city police, sheriffs, State Police, trials. The photographs will be assembled into a traveling exhibition, which will tour the state during the months of February, March, April and May, 1978, with a special Law Day showing at the Capitol.

The exhibition, entitled "The Guardians", will be shown primarily in schools, where it is intended to give young people a realistic view of the law enforcement

process, without glamour or rhetoric, and provide a focal point for panels and general dialogue on the function of law enforcement in our society. The exhibition will also be shown in public places, such as bank lobbies and court houses, to provide a meeting ground for law officers and the public they serve.

SCHOLARSHIP FUND PLANNED...

If sufficient interest is stimUlated, the photographs will be assembled in a coffee table-type book, proceeds from the sale of which will go into an Arkansas Bar Foundation fund to provide scholarships for the children of Arkansas law enforcement officers killed in the line of duty.

The project will be funded largely by an Arkansas Crime Commission grant, and staffed by Arkansas State Police interns. However, support by local lawyers is essential to the realization of the project's purposes.

YOU CAN HELP...

The present plan is for the exhibit to travel a congressional district each month for four months - February, First District; March, Third District; April, Fourth District; May, Second District. It is also a possibility that the truck may carry two sets of the photographs, so that an exhibition could be shown simultaneously, at a school and, for example, a court house in the same town, for the widest possible public involvement.

Lawyers who are interested in having the exhibit in their town are encouraged to talk to their local school officials, county officials and interested businesses to arrive at several dates (two days each) which can accomodate the exhibits. They should then communicate the choices as soon as possible to P.ul B8ntwn I" Fht

N.tlon.' B.nk Building, LItt.. Rock, Ark.,... 72201.

We'll do our best to accomodate all the requests.

HEAR YEI: On pages 15 and 17 of this issue appear copies of the Foundation's illustrated column "Hear Ye''', now appearing in the Sunday Ark• .,... Democr.t business section. We would like to encourage other papers to use the column.

Please take these pages by your local paper for their use, on a trial basis. If they decide they would like to use the column regularly, have them write to He.r Yel. c/o

Ark.n... B.r Found.tlon. 400 Weat M.rkh.m. LItt..

Rock. Ark• .,..•• 72201. We anticipate being able to provide the column, at little or no cost to the papers, often enough for weekly publication. " 14/Ar1<ansas Lawyer/January 1978

January 1978/Ar1<ansas Lawye,/13

Legal Malpractice continued from page 11 c(Nery of the negligent ac~ the requirement of disc(Nery of actual damage being suffered, and in some cases by applying the continuous treatment doctrine to toll the statute of limitation until the attomey's representation is completed.'· lawyers have been most ingenuous in the development of legal theories and they should not be surprised that those same ingenuous legal theories am used against them in legal malpractice ae· tions.

FOOTNOTES I~~. Page " ..... l.MdM'. OCkltler, lW16; ABA Report. IpecW c:o-NtIM Oft ~ . Pi' r . . . ~ . FetlnMy,

1m.

!Smith YL Lewis. II' cal Rp.-. 821, s:J) PIC. 2d 5118 11m). :llFJc:ken YL Superior Court, 558 Pac. 2d _ (.Ariz. Cl oe App..

UI78).

'MeA'" ..... Edwatda, 340 So. 2d 1187 (FIa Ct. of App...

1978).

"8oecher YL Borth, 51 App.. OIv. 2d 598.

3n

NYS 2d 781

11978). .......... June '4. 1918, • ~ 27.

'Tool R-.rch & EnglnMring Corp. \IS. HeniQMln. ~ cal.

App. ~ 120 Cal Aptr. 281 'Torma ..... YOI'IT*tt, NpOnIdIn Lege! MafprEb AIport• , AprIl, 1976 (let« r8YerIId on IIPPNO. '47 Cal. App. 3td 802, 121 cal. Apt!'. 1904 (1975).

1CIMarine Midland T. Co. va. Pent»nhy, DIiorio. & ~Il. 80 MiK. 2d 1" 301 NYS 2d 221 t1_1.~

m.

11m).

TAX TIPS

by Psul D. Williams

DI_lor. Lillie Rock Dtslrlcl Internal R_nue Serrice

PROBLEM RESOLUTION PROGRAM The primary function of the PRP Specialist is to assist and advise taxpayers who have contacted 0( been referred to the PRP office after having unsuccessfully attempted to mooNe their tax mlated inquiries through normal or routine channels.

The assistance is technical, procedural and administrative, and covers lull range 01 individual income, excise. and employment taxes. as well as certain elements of other kinds of taxes. inclUding corporation, fiduciary, and partnership.

Assistance is pr(Nided in terms of individual taxpayer needs in consideration 01 each taxpayer's situation.

Having just said what the Program is, let me emphasize that it is not a substitute for handling normal Collection, Audit and Intelligence matters. It is not a first time

contact point The Program is for the purpose of relieving those situations which have not received, in your opinion, proper IRS aMention or "run-around" type situations.

The PRP Specialist's telephone number is 378-6260. Mail direcfed to this parson should be addressed to P.O. Box 3071, Little Rock. Arl<ansas 72203. This person is directly under my supervision. but is located in the Taxpayer Service Ama, Room 1434, Federal BUilding.

This system is not unique to Arkansas. II was successfully tested elsewhare in the Country last year and is now operational in all IRS district offices. The feedback received from Arl<ansas taxpayers has been very favorable. I am happy the Servica can offer this additional assistance to you.

TAX FORMS DISTRIBUTION PROGRAM

HAPPY HOLIDAYS From

OFFICERS AND STAFFS ARKANSAS BAR ASSOCIATION ARKANSAS BAR FOUNDATION

12/Arl<ansas Lawyer/January 1978

I have just returned from a visit to the Centralized Forms Distribution Center in Austin, Texas. I was quite impressed with the potenlial efficiency and effectiveness of the 1978 forms distribution system.

Since last year, systemic changes have been made. Controls have been established to record the date orders are received and the date filled. This inf()(mation will be C()(Oputerized and subject to instant recall. This will provide me with information with which to trace your order should a problem occur. I am convinced that with the change fo computerization and mechanization. personnet at the Distribution Center will be in a much better posi. tion to fill your forms orders this year than last.

By now you should have received Publication 1045 (Information for Preparers of Federal Income Tax Returns) I encourage you to

carefully read the instructions since a number of changes have been made. One change is the need to order Package X, which previously had been mailed aut()(Oatically to those who were on the Practitioner Mailing List. The DimctO( of the Austin Service Center assured me that the following dates. which are listed on the front of Publication 1045. will be used fO( filling of f()(ms orders: Form Z333E ....... Mid-N(N. thru early Dec. Form 2333 .... Late N(N. thru Dec. Forms 2333R 2333A Late Dec. thru mi~an.

Form 2333T .Beglnning in January I urge you to order your forms early, because orders will be filled on a first-come. first-served basis, in ac· cordance with the ab(Ne time table.

Direct your requests for forms to Forms, P.O. Box 2923. Austin. Texas 78769. ~ 00

•

seeability of harm to him, the degree of certainty that plaintiff suffered injury, the closeness of the connection between the defendant's conduct and the injuries suffered, the moral blame attached to the defendant's conduct, and the policy of preventing future harm.

The Court reiterated tha~ as in the case of an intended testamentary bene-

ficiary, public policy requires that an attorney exercise his position of trust and

superior knowledge responsibly, so as not to adversely affect persons whose rights and interests are certain and foreseeable. 3 A Florida Appellate Court has agreed that the beneficiary of a partially frustrated bequest may sue the attorney for failing to use due care in effecting

the full testamentary distribution sought by the decedent.'

On her instructions, the attorney drafted and the decedent executed a will leaving everything to the decedent's daughter. When decedent later remarried, she asked the attorney to revise her will in any way necessary to retain her daughter as sole beneficiary. The attorney advised decedent that no changes were necessary.

After her death, decedent's second husband claimed his interest in the estate as a pretermitted spouse. The daughter settled the claim for S27,OOO and then sued the attorney for malprac-

daughte~s interest was of that class, the Court reversed the judgment and returned the matter for trial.

Similarly, in a recent California case,7 involving an action for malicious prosecution against an attorney, the

Current decisions tend to indicate a growing trend toward permitting a contractual warranty-type basis for recovery, thereby rendering the contractual statute of limitations applicable rather than the negligence limitations period. In 1965 a client asked his New YOI1< attorney to examine the title to property being purchased. Prior to closing the attorney advised his client that the title was free and clear of encumbrances and the transaction was closed. In 1970 when the client chose to sell the property, he discovered that the property was encumbered. The client brought suit in 1971 and it was dismissed on the ground that the threeyear statute of limitation had nun. On appeal, the New Yorl< Appellate Court reversed and in doing so applied a sixyear statute of limitation holding: There was an express promise by defendant to achieve the specific result of establishing mar1<etability since anything less would defeat the purpose of the retainer agreement. s The dissent in this case pointed out lhat there was no written contract or retainer agreement between the client and the attorney.

Court described the attorney's duties, as follows:

A recent Illinois case has made it

the maritime lawyer for failing to adequately check the title to the vessel. The California court held that a lawyer who holds himself out to the public and to the

abundantly clear that an attorney must

tice. In response to plaintiff's amended

not file a lawsuit without a reasonable in-

complaint seeking to recover for negli-

vestigation of the facts having been

gence, and as third-party beneficiary of the attorney-<:lient contract, the Trial Court granted summary judgment for the attorney.

On appeal by the daughter, the District Court of Appeal canvassed the divided authorities and chose to rely on the California nule stated in Heyer vâ&#x20AC;˘. Flaig, 70 Cal. 2d 223, 449 Pac. 2d 161, 74 Cal. Rptr. 225 (1969). This case held that an attorney owes a dUty of care not onty to his client. but to the beneficiaries of a client whose rights and interests are certain and foreseeable. Holding that the

made. In the Illinois case, a woman sued

her doctor for S2SO,OOO alleging medical malpractice. The doctor counterclaimed against the woman and also sued the attorney for negligence and misconduct in

bringing a spurious suit Testifying as an expert witness on behalf of the docto~s counterclaim, a Chicago attorney said that prior investigation was normal, legal

practice and that a lawyer "has a duty not to proceed if the suit will have the effect of harassment.... It took only 15 minutes for the jury to award judgment

against the client and the attorney.

An attorney has probable cause to represent a client in litigation when, after a reasonable investigation and

industrious research of legal authority, he has an honest belief that his client's claim is tenable in the forum in

which it is to be tried.... The test is two-fold. The attorney must entertain a subjective belief in that the claim merits litigation and that belief must satisfy an objective standard.

An attorney's duty to investigate may also include a reasonable investigation if he refers busi ness to another attorney.

In a 1976 New Yorl< decision,' a plaintiff obtained a jUdgment against a lawyer for S1SO,OOO for carelessly referring one of his clients to a Nfffl Jersey personal in-

jury lawyer who later absconded with the settlement money.

In 1975, a California court, in Wright VI. Adem..- expressly recogniZed a higher duty of care for the legal specialist. In Wright, plaintiff had consulted an attorney regarding the purchase of an ocean-going vessel. The attorney referred the client to Williams, a speciaiist in maritime law. Plaintiff later sued

profession as specializing in an area of the law must exercise a skill, prudence,

and diligence exercised by other specialists of ordinary skill and capacity specializing in the same field.

Most jurisdictions have in the past

held that an action for legal malpractice accrued for purposes of the statute of limitation when the negligent act occurred. There have been recent significant changes in this area, such as

holding that the statute of limitation commences to run from the date of discontinued on page 12

Odell Pollard is Chairman, Claims Review Committee of the Ar1<ansas Bar Association - the Committee charged with the responsibility for revifffling professional liability insurance for the membership. He has served on this Committee since 1972. He

has been a member of the Interprofessional Liability Insurance Study Committee and of the Insurance Law Committee. He is a partner in the Pollard & Cavaneau Law Firm

of Searcy. He served as the Republican Party State Chairman from 1966 to 1970 and National Committeeman from 1972-1976. Pollard's comment about his article is en-

0"

lightening, "I hope that it doesn't scare the britches some of our brother lawyers.

Hopefully, it will make all of them more claims conscious and thereby lessen the number of malpractice claims that are made against Ar1<ansas lawyers."

Chairman Pollard will publish a sequel to this article in the next issue of The Arken... Lewyer - designed to be of assistance to the ArI<ansas lawyer in deciding whether securities' coverage is needed in one's malpractice insurance policy. The article will be on Arkansas securities matters - to provide guidance to the lawyer who may not even be aware of being involved.

January 197e/ArI<ansas Lawyer/11

RECENT DEVELOPMENTS IN LEGAL MALPRACTICE - Odell Pollard

In the past few years legal malpractice claims have Increased dramatically.' Of even more concern than the frequency of such claims are the numerous new theories upon which these claims are

o

based.

0

Some of the newly·found ways for a lawyer to get Into trouble are: (1) By 'elling to ..aq_1y . . . .rch ......UI8d .... 01 tJw Int .nd '.llIng 10 m.....n Informed cl8c11lon .. to tJw cou.. 01 conduct which his cl t "-Id t.k. In auch ....UI8d ; (2) By '.1I1ng to dl8cover tNt • cl t who 18 • g...rdl8ll 01 .n MI.t. I. 1I1eg.1· Iy ualng tM w.rd'. 1IlClMJ; (3) By '.IMng 10 draft • will In auch • way ao •• to c.rry out 1M t..tator'••n· nounced willhaa (In auch • ell...llon, M m.y .Iao be IIl1ble to tJw Intandad bene· llel.,,); (4) By having • client to _ him In contract r.thar than In tort and theraby IIffordlng 1M client • longar parlod 0' time within which to _ hi. IlIwyer; (5) By to ..aq...taly Inveatl· gat•• claim prlor to tM nMng 01 • ault; (6) By - " n g • client to 8Il IncompeI...t attorney or to .ttorney who lIbacond. with tJw client'. 1IlClMJ; and (7) By holding ....... _II out ......ng • .-cIaMat In • p.rtlcular 'leld 01 tM Int and Ihan '.11Ing to .nrclae tJw "'II~ pl\ldance, and dillgance nonn.11y exercl_ by olhar .-cleMat. In that fteld.

In 1967. Rosemary Smith retained an attorney to represent her in a divorce action against her husband, a reijred General in the California Naijonal Guard.

The attorney advised her that the General's state and federal pension benefits were not community property and he did not seek an epportionment of those benefits In the divorce. The final decree was entered February 27, 1968.

The law in California was unsettled at that time concerning future pension benefits. Writers hed Indicated there was a right to the state benefits; however, no reported California case prior to 1967 had held that a court was empowered to award future benefits to a spouse in a divorce action. Also, In 1967, there was substantial doubt whether federal military pensions constituted community

' 'ling

.n

.. ,

"

10/Ar1<ansas Lawyer/January 1978

property. Later, when Rosemary Smith sued her attorney for felling to obtain a division of the General's retirement benefits in the 1976 divorce action, the California Supreme Court affirmed a 5100,000 judgment against the attorney.'

The California Court said: If the law on a particular subject is doubtful or debatable, an attorney wili not be held responsible for falling to anticipate the manner in which the uncertainty wili be resolved.

However, the California Court did not stop there. The Court said: But, even with respect to an unsettled area of the law, we believe an attorney assumes an obligation to his client to undertake reasonable research in an effort to ascertain relevant legal principles and to make an informed decision as to a course of conduct based upon an inteliigent assessment of the problem.

The Arizona Court of Appeals has held, despite lack of privity, that a legal malpractice action can be maintained by the conservator of an Incompetenfs estate against the guardian's attorney who allegedly failed to discover that the guardian was misappropriating and improperly investing guardianship estate funds.

In response to an action filed by the conservator, defendant·attorneys moved for summary judgmenL relying on the general rule thaL in the absence of fraud or collusion, an attorney cannot be liable to one other than his client in an action arising out of his professional duties.

The Trial Court denied that motion on the ground that the defendants failed to establish the absence of a legal relationship and concomitant duty to the ward.

On appeal, the Appellate Cou rt affirmed, holding that representation of the guardian by the attorneys created a duty to the ward. The issue of whether the attorneys knew or shou Id have known that the guardian was acting adversely to the ward's interest was held to preclude summary judgment. The Court em· phaslzed that the determination of whether an attorney is to be held liable to a third party is a matter of policy and involves balancing various factors; that is, the extent to which the transaction is intended to affect the plaintiff, the fore-

MEEK

Cover Story continued /rom page 5

"When I see 300 automobile loads of young Americans coming down our Little Rock Main Street, with every voice shrieking defiance to Pine Bluff to an accompaniment of honking horns, clanking cowbells and superinduced backfires; or when, during fraternity initiation time, I see some mother's pride and joy walking down Fifth Street wearing his new fall suit - all except the pants; or when I see an entire grandstand fu II of students shouting "Siss-Boom-Bah", and making other strange sounds under the direction of cheer leaders who achieve unusual anatomical positions - at such times as these, I say to myself: 'I am glad I live in a civilization that supresses animal instincts and puts culture first of

all!' ..

Fledgling Lawyer

Space considerations will not permit the copying of his Review of "Little Red Riding Hood" given to the Little Rock Book Club, his tribute to his last tire during World War II, which he described as "a rotating, vulcanized Gunga Din", or his analysis of the song, "What Makes You Do Me Like You Do, Do, Do,", in a speech entitled, "Deep Thoughts for Deep Thinkers" delivered to the little Rock Chamber of Commerce. His last address to the Arkansas Bar Association, "Idem Sonans" is pUblished in 12 Ark. Law Rev. 290 (1958).

Mr. Meek always wrung a final laugh from his audience before he sat down. This is something he cou Id never resist. So it is that when he has been "gathered unto his ancestors" and is in a "state of Elysian bliss", he will draw a final chuckle from the Judge of the probate court. Mr. Meek has already prepared an order for presentation to the court which provides that his will is entitled to be admitted to probate. At the bottom, in the lower left-hand corner of the typewritten order, he has written in script, "Approved as to form, Harry E. Meek.,,~

EaINm8d Anome)'

Pl8lident'a Report continued /rom page 7

In the last session of our Arkansas Bar House of Delegates, LAWPAC was authorized. It is hoped that the LAWPAC to be formed will be a separate, non-profit corporation (hopefully, with tax-exempt status), supported by a small monthly contribution paid by bank draft. Five hundred (500) contributions of $5.00 a month each would get the plan launched. We hope to have the plan in readiness by the Mid-Winter meeting. When called upon for a contribution, I urge you to respond affirmatively, as this cou Id well be the most important money you will ever spend. In this instance, the "good cause" is really "your cause." If we fail to accept that challenge of educating our profession and the pUblic, the job will simply not get done and in such event, we all will be the losers.

Regarding No-Fault, let me report to you that your association has participated in underwriting the expense of a detailed analysis of the Department of Transportation report which the Carter Administration is using as a

rallying point to promote national no-fault. The critique reflected in the analysis clearly shows the purposefUlly built-in bias in the Department of Transportation's report.

We trust that our collective efforts will be successful once again in defeating this repeated assault upon the right of the people to seek redress for their loss by a jury trial. I once again remind each of you to do your best to protect and enhance the jury system. Although we very well need to seek means of improving the delivery of justice, juetlce in this great land of ours need. 110110 be ralioned. Write your senators and representatives and let them know how you feel about no-fault, products liability, national health insurance, and national workers' compensation.

MIDYEAR MEETING As a final note, start planning now to attend the MidWinter meeting. A new system will be introduced on Willa and Truet. under the leadership of Dick Williams.

#.....

January 1978/Art<ansas Lawyerll

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'0 $onr~

1918

PRESIDENT'S REPORT

by Walter R. Niblock

Serving as your president has brought me, through attendance at various meetings, in contact with officers of other bar associations. The most recent meeting was that of the Southem Conference of Bar Presidents. As I have visited with the officers of other associations, heard speeches, and shared thoughts and concems with them, I have become more and more convinced that we, as a bar association specifically, and the legal profession in Arkansas generally, although we have many problems always confronting us that have to be dealt with, have so much to be thankful for and proud of. We are far ahead of so many others in unity and accomplishments that I felt I shou Id in some way convey this to you.

For example, we have a vohmtery association as opposed to a un"1ed bar. The unified bars are not independent; we are independent. The unified bars are subservient either to the state legislature or the state supreme court; we are not. The unified bars are limited in their efforts to effectively represent the legal profession in a vigorous manner because they are not independent. Some of the states that have a unified bar also have a voluntary bar which means that in many instances efforts are split and in other instances duplicated. Neither can be as effective as the combined, unified efforts of lawyers. Our state bar association is comparatively small, yet our work has been great. As an example, I refer to our "systems" approach on CLE. And, contrary to other states where lawyers practicing in the different areas, such as plaintiff representation, insurance defense, corporate, what have you, are in constant conflict, I have found and am proud to say that among Arkansas lawyers there is generally a good feeling. Only through cooperative efforts could our work have been achieved on such small budgets as we have worked under.

LAWYER ADVERTISING Many state associations are still wonrying with advertising. Through the dedicated efforts of our Specialization and Advertising committee and under the leadership of Jeff Starling, we have met the advertising matter headon, have done our homework, filed our petition in the Supreme Court, and are now waiting on the Court to finalize the matter.

MALPRACTICEINSlJRANCE We are in the forefront on our malpractice insurance plan. While at the Southern Conference of Bar Presidents, I found that we were the only state among the six-

teen present that has an OCCUrNflC8 plan. A great deal of the discussion at the conference centered around the malpractice woes. We must continue to work towards solving the problem of availability of coverage, and our committee under the able leadership of Odell Pollard is doing just that.

FOUNDATION Other bar groups acknowledge and confirm that our Arkansas Ber Foundetlon I. wfthout peer. It .. the envy of associations throughout the country and in fact is used as a model of what can be done by lawyers if they will band together and work together for a common cause.

BUDGET PROGRAM Many bar associations with far greater memberships and far larger budgets to work with have greater fiscal problems than we have. We are tru Iy squeezing every ounce of worth from your bar dues paid in. But, although it is nice to feel a sense of pride in a job well-done, we cannot rest on our laurels. With spiralling costs and expenses and needs to be met, it is apparent that an increase in the current bar dues is inevitable, and we have no choice but to give consideration to such an increase.

In this connection, we are planning to come up with a mUlti-year budget program so that we will have continuity of programs from one year to the next and so that we can more effectively plan our courses of action several years hence and continue, through good planning and budgeting, to get the most mileage possible from your association dues.

LAWPAC Throughout the meetings with other state bar officers, there have been discussions of the need of lawyers to commit themselves and to commit financial resources to a successful legislative education effort and successful lobbying efforts. As I have mentioned previously, the legal profession in Arkansas no longer has the influence with the Legislature assemblies that we formerly exercised; we are in the minority, and if we want to be heard effectively, we must be willing to invest our dollars in a program to gain the needed support that we must have to carry on our programs. Occasionally, I receive letters from members that are derogatory about some of our programs. However, I had much rather receive that than a no-comment attitude. It is more important to be heard than to remain silent. continued on page 9 January 1978/Arkansas l>1:Nyern

By: Representative linder

H.C.R.

HOUSE CONCURRENT RESOLUTION PROVIDING FOR THE PRESENTATION OF A CERTIFICATE OF COMMENDATION TO MR. HARRY E. MEEK FOR HIS LIFETIME OF INVALUABLE SERVICE TO THE STATE.

WHEREAS, Harry E. Meek, a native of Arkansas, and now in his eighty-sixth year has devoted much of his life to the enrichment and well being of Arkansas, and WHEREAS, he has been a distinguished member of the Arkansas Bar for over sixty years and the Arkansas Supreme Court reports are filled with important cases that he has briefed, and WHEREAS, because of his rare gift of discriminating draftsmanship and thorough knowledge of the law, he has been called upon on numerous occasions to help in the drafting and/or editing of bills for submission to the General Assembly of the State of Arkansas, and

WHEREAS, our statute books abound with the imprint of his good work among which are such significant pieces of legislation as the Corporation Code of 1931, Business Corporation Act of 1965, Arkansas Inheritance Code of 1969, and a substantial part of our banking laws, and WHEREAS, as Regional Counsel of the ReconstnJctlon Finance Corporation during "The Great Depression" he personally handled the application of many Arkansas Banks to the ReconstnJction Finance Corporation for the sale of preferred stock to the Reconstruction Finance Corporation, and

WHEREAS, during this critical period in our state's history, Arkansas was the first State in the nation to have a bank re-open under the preferred stock plan, and WHEREAS, before the banking situation in Arkansas had stabilized, approximately one hundred twenty-five banks in Arkansas, through the help of Mr. Meek and the ReconstnJction Finance Corporation had been reorganized during which time Mr. Meek worked long and hard and many times well into the night in helping Arkansas to get back on the road to economic recovery, and WHEREAS, because of his excellent reputation as a"attorney and his keen and penetrating sense of humor he has been invited to speak throughout our State as well as in other states all of which have helped to enhance the good name of Arkansas, and WHEREAS, he has always been interested in exercise and athletics having played left tackle on the Camden High School football team when he weighed only 141 pounds, and WHEREAS, he has had a deep and abiding interest in things other than his law books and legal problems and he takes great delight in such diverse pursuits as the study of astronomy, rocks, trees and flowers and he can give you the Latin or Greek name for the trees and flowers seen in daily life, and WHEREAS, his feeding of birds, raccoons and an occasional possum from nearby Alsop Pat1< is an evening ritual at his home, and WHEREAS, he has shown great love and concern for birds by publicly pleading with our citizens to feed them during bad weather, and WHEREAS, as President of the Pulaski County Humane Society and for sometime thereafter, his care for animals and his response to their needs at all hours of the day or night have become legendary, and WHEREAS, because he has utilized his gifts and his talents so unselfishly, so well and so long for the ever-lasting benefit of our State, it is altogether proper and fitting that we recognize this remarkable man.

NOW, THEREFORE, BE IT RESOLVED BY THE HOUSE OF REPRESENTATIVES OF THE SEVENTY-FIRST GENERAL ASSEMBLY OF THE STATE OF ARKANSAS, THE SENATE CONCURRING THEREIN: SECTION 1. That Governor David Pryor is hereby requested to designate within the near future a day as "HARRY MEEK DAY IN ARKANSAS." SECTION 2. That the Speaker of the House, President of the Senate, and the Governor are hereby requested to prepare a Certificate of Commendation to be presented to Mr. Meek for his invaluable services to our State by the Governor at a Joint Session of this House and Senate.

SECTION 3. That the Governor shall notify Mr. Meek of the passage of this Resolution and invite him to appear in the House for presentation of the Certificate to him.

SECTION 4. That an article on the contributions of Mr. Meek to Arkansas shall be filed in the permanent records of this State as a splendid example of duty, responsibility and good citizenship for all of our youths to follow.

f......

e/Arkansas Lawyer/January 1978

He obviously loved to jostle the JUdiciary. When speaking to the Arkansas Bar Association, he intoned: "Judges have fearful responsibilities. For instance, in 107 Federal, Page 15, the Circuit Court of Appeals sitting in New York was called upon to decide whether a corset which was exhibited to the court constituted "wearing apparel made in whole or in part of lace", within the meaning of a customs duty statute. The lower court, concealing its modest blushes behind an unreported opinion, adopted the view (which is sound, from the seamstress' standpoint) that since the lace was sewed on the edges and not in the middle, it represented merely a superfluous decorative trimming, rather than an insertion constituting an essential unit in the make-up of the garment - so that. viewed in such light, the corset did not constitute wearing apparel made in whole or in part of lace. The case was appealed; and we can well visualize the appellate court judges struggling for days with the profound problem which was thus brought up for their consideration; making the experimental application of established principals of logic, inductive and deductive; searching for ancient precedents; and consulting such works as Blackstone, Pothier, Grotius, Puffendorf and the Delineator. After completing its research, the appellate court reversed the lower court and took the broad judicial position that lace sewed on a corset is per â&#x20AC;˘ a part of the garment and should be so regarded whether sewed on the edge, middle, forward, backwards, or sideways! You can well imagine, in a case of this kind, the sense of crushing responsibility that would be felt by a conscientious judge when he realized that his error judgment might serve as a precedent to mislead 120 million people as to when a corset constitutes wearing apparel made in whole or in part of lace."

In "Things" delivered to the Arkansas Bar Association in 1950, Mr. Meek revealed his poetic skills. He analyzed Spencer's "Prothalamion" and then put the rule of Horsley v. Hllbum to rhyme: "I always thought "My Feet Are Killing Me" would make a nice poetic sentiment. But the title to this poem I have written for tonight is, "Fee Tails Is No Good; I Wants a Fee Simple". I am going to read you this gem of poesy:

1.

Come here and gather round me children, While I tell you the rule of Horsley v. Hllbum, Reported in 44 Ark., at Page 458, It's a leading decision in this state, Tra la; tra la; merrily sing tra la.

2.

In 1651 Marietta Hilburn's papa drank a toddy, Then conveyed some land to Marietta and the heirs of her body.

What estate did Marietta get?

Some folks are wondering about that yet.

Tra la; tra la; merrily sing tra la.

3.

Said Marietta, with her smiling dimple, 'Fee tails is no good; I wants a fee simple'.

So she sold her doubtful title for which she couldn't be blamed, And through her deed the apellant Horsley claimed.

Tra la; tra la; merrily sing tra la.

4.

Horsley contended Marietta had a fee conditional estate, Which became absolute when she had issue on a certain date; That anyone who ever read Blackstone would have saw That this was the rule of the common law.

Tra la; tra la; merrily sing tra la.

5.

The Court said, 'Yes, that argument would settle this ensnarlment, If the statute de doni. conditionalibul hadn't been passed by Parliament'; And held that under our fee tail statute (which contemplates the common law in 1607 as amended by Parliament) Marietta got a life estate in these lands and tenements; With a contingent remainder to her lineal descendaments, Tra la; tra la; merrily sing tra la.

6.

Thus, the Court settled this litigious brawl; And Marietta's surviving issue seem to have got it all.

Horsley said, 'I'd sure like to put in the calaboose Those Englishmen, who passed that old statute de doni.

condltlonalibus.'

Tra la; tra la; merrily sing tra lao Occasionally he would become serious and reveal something of his inner being.

"All things in the law are not bad. There's one thing that does much to redeem it; and I refer to these good, courteous, conscientious fellows who try to make good, courteous, conscientious lawyers; and these good judges who accept their office as a grave responsibility and not as a decoration. I mean these lawyers who don't make a personal feud out of a technical issue; and who believe both their clients and themselves should give some regard to the Golden Rule; and not these - I can't say it in the presence of ladies - who will move to dismiss your appeal if you happen to file a brief one day late. And my plaudits go to these judges who really dig into our cases and who can buck a crowd, and who can overru Ie a lawyer's contention without being sarcastic. I have had judges rule against me, and do it so courteously (and yet so firmly and with such logic), that I COUldn't help but realize that they were right and I was wrong; and the ability to convince a lawyer of his error, to do it courteoUSly, in my opinion, is the earmark of a really good jUdge."

But he would always revert to the ridiculous: "I want to offer a prize to the first judge who will put a decree that an act is merely 'null' - and suppress his circumlocutional impulse to say 'null and void and of no effect'. Then we have our inevitable courtroom dramatics; it looks like a lawyer can't even take a default judgment without putting on a balcony scene. And last, but not least, there's that immortal yardstick of the law: what a reasonably prudent man would have done under the same circumstances. You know folks are always erecting statues. I think the American Bar ought to erect a statue of the reasonably prudent man and show him sitting up there under the same circumstances!"

In 1956, Mr. Meek spoke to a Parents-Teachers Association in Hot Springs. He told them: continued on page 8

January 1978/Arkansas Lawyer/S

Cover SIory continued from page 3

treed a coon named Cornwallis, whereupon the people called Washington the 'Father of Our Country', and put his profile on a two-bit coin. My experience while at Yorktown was more analogous to that of Cornwallis than Washington. As I recall, I ate some bad clams; and whereas Washington took Cornwallis, I took paregoric."

He often joked about rationing and wartime Federal regulations. For example: "I want you to understand that this is going to be no light, jestful speech, delivered in a humorous vein; but what you are about to hear is a solemn, unvarnished revelation about fierce warriors and about war. The regulations say we men can't wear cuffs on our trousers and forbids the sale of more than one pair of pants with a suit of men's clothes. In other words, not content with regulating our interstate commerce, our wages and hours, and our farm security, the government now wants to regulate our pants!

Gentlemen, this business won't do! The constitution not only assures our right of freedom of speech and the lawful pursuit of weallh and riches, but it also guarantees the integrity of our breeches. And in the morning when I get out of bed and slide into the comfortable security of my faithful hand-m&-downs, I want to feel that I am doing this by virtue of my inalienable vested rightand not under the authority of Federal Permit No. 6842.

Moreover, when I am wending my way through the marts of trade, I don't want to be threatened with the possibility of having some Federal officer accost me, and dispant me, on the ground that my license has expired!

Our pants are our most faithful servitors. They afford sanctuary to our goo5&-flesh; and they conceal the eccentricities of our shins and knees. They intervene between us and cold benches. They furnish asylum for our shirt-tails; and provide pockets for our keys, and our handkerchiefs, and our money - if any. Nor does their utility readily succumb to age; but our pants gain lustre and personality with maturity. And even when their pristine glamour has departed, and we have written off 25% depreciation in the seat, we still wear them with confidence and assurance. And when at last their stewardship is ended and we lay them aside as faithful coadjutors who served us well, - even then their utility is not exhausted; but as a unit in our wife's hooked rug or as an accession to our hired man's habiliments they enter into a new useful sphere."

Mr. Meek could find something funny in familiar objects. In a speech entitled, "General Topics" delivered to the Arkansas Bar Association, he said: "Take the great Seal of the United States, for instance.

The most striking symbol on our national seal is the uncomfortable eagle. You know the figure of an eagle is shown upon the seal of a great many of our governments; but on no seal examined by me does the eagle appear to be sitting on a limb, relaxed and comfortable.

On the other hand, the eagles shown on our public seals all appear to be suffering with high blood pressure; and invariably, they are shown in some posture which must be very distressing to an eagle. The eagle on the United States Seal has his legs spread far apart in an anatomical gesture that the children call "doing the splits"; but 4/Ar1<ansas Lawyer/January 1978

the most remarkable thing about the eagle on the American Seal is his tail! This tail certainly has no counterpart in natural history; and, in my opinion, it owes much more to the milliner's art than it does to ornithology. But, at any rate, let our Secretary of State at Washington place merely his signature on a document, and the instrument has no legal status - it is not official - it is nothing in the eye of the law. But if he will add to his signature the imprint of a uncomfortable fOWl, doing the splits, with a synthetic tail, then the paper is highly regarded as a public document expressing the will of 120 million people, and it has a special legal status and is admissible in evidence.

The eagle on the Arkansas State Seal has managed to achieve a sitting position in much the same fashion as humans do, but in doing so, he or she has narrowly escaped sitting on the sharp points of four arrows. On our State Seal also appears a sword (which is a symbolical warning to the foreign corporations) and likewise the word "Mercy", which is probably addressed to our creditors."

Another one of Mr. Meek's favorite tricks was to analyze the legal language in an insurance policy or a common legal instrument. Speaking to Arkansas Bankers, he discussed his promissory note: "But my complaint was that Bill had surreptiously inserted in the note a provision whereunder the makers and endorsers agreed not only to waive presentment for payment and notice of nonpayment but also agreed to waive protest. I told Bill it was all right to put in there that I waived presentment for payment and notice of nonpayment (in fact, I was willing to go the whole hog and waive payment); but that the right to protelt at the buffetings of fate was a privilege I had always cherished most highly - (in fact, that I had sort of specialized in protesting) - and that this was one right I certainly would not waive. I assured Mr. McDonald that I was willing to obligate myself for value received, and without defalcation or discount, and to pay penalty interest on my note and even storage charges, if required; moreover, that it was O.K. by me, in the event of nonpayment of said sums at maturity or any installment of interest thereon, for the holder to be invested with power to sell at public and/or private sale all my securities and collaterals. But I explained to Mr. McDonald that the maker's right to protest at having to pay is an ancient prerogative as old as the law merchant, and if he really expected me to pay that thing when it fell due I certainly wouldn't waive protest."

In 1938, Mr. Meek spoke to the Medical Association.

He facetiously described his experience with doctors.

"The diagnostic results achieved in different quarters often present a divergence of views that is bewildering.

For instance, the chiropractic will tell me that I am suffering from nerve interference due to a displacement of the fourth lumbar vertebra, but the osteopath may suggest that I have adhesions. The nose specialist illuminates my sinuses and gives me a bottle of nose drops; while the bacteriologist finds that I am extremely allergic to orchids. The surgeon speaks gravely of my appendix and demands a blood count; but the general practitionerthat grand old bulwark of the entire medical profession - he just pokes me in the liver and looks at my tongue and says, 'It must have been something you et. "

"As a matter of fact, it's a wonder I didn't become a musician, for when I was a small boy my youthful friends often assured me that some day I would become a fine singer. This prophecy was not based on any vocal demonstration, but, as I recall, they said they put it on the ground that I had mockingbird legs."

To the Lion's Club in 1939, he said: "So far as athletic contests are concerned, I have not had any particular qualifications - having been, during my youth, a rather indifferent football and baseball player; while the only water sport in which I have ever attained much proficiency is gargling."

To the Arkansas Bar Association in "Things" in 1952 (6 Ark. Law Rev. 337), he confessed: "At the age of fifteen, I had a sobering experience, the impact of which probably affected me in my adult years; I got kicked in the face by a horse."

Mr. Meek was a favorite of the Little Rock Rotary Club.

On one occasion, he told Rotarians of his political career: "I remember when, as a young man, I ran for City Attorney at Stuttgart. I really didn't want the office; but I let my constituents sort of over-persuade me. They almost twisted my arm to make me agree to run. But, after announcing, I didn't shilly shally around. Without hedging, I came out with a pointed and constructive platfonm. I told the people, first, that I stood for just laws; and second, for a greater and better Stuttgart. When approached by the ministerial alliance, I told them pointblank that I was against sin, and likewise against all fonms of evil.

But the last was going too far. It cost me the votes of at least 200 sinners and of all the Republicans in the community."

When speaking to the American Bar Association in Chicago, he discussed his brief experience on the bench: "Nor do I have occasion to blush at my service on the bench because, while I entered only one order before yielding the enmine, nevertheless the lawyers of South Arkansas even to this day speak of that order as having represented the wisest and best considered decision ever handed down from the bench of the Ouachita Chancery Court. But whether or not such extravagant praise be merited, I know that in making this I ruled fearlessly and according to the dictates of my conscience and better judgment; and my order (which received such universal acclaim) was that the court should stand adjourned until the return of the regular judge."

He would sometimes kid his audience, but always gently. At the Attorney Generals' banquet he said: "It's conceivable that I won't always be a lawyer. I have made the mistake, in my legal education, of concentrating upon the statutes, rather than the court decisions; and so it is possible that some day the legislature may repeal the law I know. When this happens, I guess I will just have to give up the legal profession and be a judge or an attorney general or something like that."

His closing remarks to the Arkansas Bankers in 1947 is another example: "But time marches onl And some day the trumpet will sound and Harry Meek will be gathered unto his ancestors. And while creditors are proving claims against my estate, I'll be dwelling in the everlasting joy and in a state of Elysian bliss. But however joyful I may be, when I walk

the golden streets one thing will be lacking and will mar my happiness; I know I'll be lonesome for the bankers!"

Some of funniest remarks are found in the speeches he made during the dark days of World War II. Again, he used self-ridicule as his text: "I will not attempt to review my military exploits other than to say that I was always imbued with a warlike and martial spirit; and I rendered service beyond the call of duty as the member of a very distinguished unit of kitchen police. We considered ourselves a sort of a suicide squad and resolved that if it came to the worst, we'd all die peeling potatoes. But there came a day when of all the men in our regiment I was singled out for special consideration. In fact, they prepared to call a court martial in my honor; and they showed me a fonmidable writ which read that on the _ _day of May, 1918, I did backsass a second lieutenant, contrary to the Articles of War. When I saw this document I noticed it was headed, 'The United States of America vs. Private Harry E. Meek'; and I couldn't help but think what a omrsided contest that wasl On one side there was the United States of America, with its teeming millions, and its territorial and insular possessions, backed up by the world's greatest industrial system and a gigantic Anmy and Navy; while on the other side - there was just mel And what show did I have in a contest like that? And the thought kept recurring in my mind: If the United States wanted to have another scrap, why didn't she take on Russia or Japan or somebody her size? Why did she have to pick on me?

And so for a while my prospects were most melancholy. It was finally decided, however, that my offense could be condoned without prejudice to the peace and dignity of shavetails; so I was released to resume my grim duties as a fighting man in the Allied Cause. And thereafter I led my squad through some very fierce mopping up operations - without losing a single mop; and on another occasion I led a detail of fearless warriors over certain strategic terrain - picking up papers and cigarette butts."

In another address entitled "Washington, Napoleon, Wellington And Me", he again told of his own military exploits during World War I: "Another thing that impressed me deeply during Army days was our bayonet practice. Our Lieutenant told us that when we found ourselves fighting with bayonets we must stick the Genmans in their stomachs. And he told us that when we lunged at the enemy's stomach, we must yell (which I thought would be easy enough for me); and he showed us the most approved methods of sticking the Genman soldiers in their respective abdomens. I confess I didn't enter so enthusiastically upon this program of evisceration. It occurred to me that I might meet some big Genman who didn't want his stomach stuck. And, anyway, how about my stomach?

And when they told me the Genman bayonets were much longer than ours, I thought that maybe we ought to find some way to compromise this war."

In this same speech, he made the following outrageous comparison: "Now take the case 01 Washington: Washington crossed the Delaware (and to that extent his career rather closely paralleled mine, for I, too, have crossed the Delaware); and down at Yorktown, Washington continued on page 4 January 1978/Arkansas Lawyer/3

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