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JULY 19n VOL. 11, NO.3

THE OFFICIAL PUBLICATION OF THE ARKANSAS BAR ASSOCIATION

~e

Arkansas Lawyer SPECIAL FEATURES

OFFICERS

Waller R. Niblock, President Wayne Boyce, President-Elect Cyril Hollingsworth, Secretary-Treasurer

COVER STORY Dorothy Thomas "Bill Alexander" Henry Woods, Jr. Our "Fourth of July" Bill Alexander Recent Developments in the Federal Estate and Gift Tax Laws John T. Tuohey A Compensable Hernia Under the Workmen's Compensation Act - A Stronghold of Strict Statutory Construction .. Norwood Phillips Exploring the Boundaries of the Roe Doctrine: An Imaginery Supreme Court Opinion John I. Choate "Pound" Revisited Griffin B. Bell

88 92

96 106

110 117

EXECUTIVE COUNCIL

Don. M. Schnlpper John Mac Smith Herman L. Hamilton Charles L. Carpenter G. Alan Wooten Randall W. Ishmael Joe D. Woodward Robert D. Ross

EX-oFFICIO

Waller R. Niblock Wayne Boyce Cyril Hollingsworth Herschel H. Friday J. Steven Clark James D. Cypert

REGULAR FEATURES President's Report Juris Dictum Legal Economics Law School News Oyez-Oyez In Memoriam Executive Council Notes Service Directory Lawyers' Mart Aegis Addenda Ethics Context o.

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EDITORIAL COMMITTEE

Robert T. Dawson E. Alvin Schay James M. Moody

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Cyril Hollingsworth 121 1.B.C. 1.B.C. 119 Co Eo Ransick 123 109 Wo Christopher Barrier 102 0.0

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Walter R. Niblock 86 C. R. Huie 101 Fran Shellenberger 108 114 B. Tarkington 94 116

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Published quarterly by the Arkansas Bar Association, 400 West Markham, Little Rock, Arkansas 72201. Second class postage paid at Little Rock, Arkansas. Subscription price to non-members of the Arkansas Bar Association $6.00 per year and to members $3.00 per year included in annual dues. Any opinion expressed herein is thaI of the author, and not necessarily that of the Arkansas Bar Association. The Arkansas Lawyer, or the Editorial Committee Contributions to The Arkansas Lawyer are welcome and should be sent in two copies 10 lhe Arkansas Bar Center. 400 West Markham. Little Rock, Arkansas 72201.

All Inquiries regarding advertising should be sent 10 The Arkansas Lawyer, above address.

July 1977/Arkansas Lawyer!85

PRESIDENT'S REPORT

by Walter R. Niblock

Thank you for the opportunity of letting me serve in a leadership position in your Bar Association. I have long felt that active participation within the Association is an important part of the overall practice of law. To neglect it is to neglect a responsibility which I feel is inherent in the legal profession. Participation in Bar Association activities provides a vehicle through which each of us has an opportunity to express interests and concerns. In the past, activities of the Bar Association have brought about some of the great advancements that have been made within our system of jurisprudence. Participation should be responsible for great improvements and advancements in the future.

Since this is my initial report to you, I want to outline to you some of the pressing concerns I have had over the years of practicing law and which have ncit been diminished by time. Having just recently completed a two years' term as the president of the Arkansas Trial Lawyers Association and having been involved, through it, in matters of vital public concern not only before our State Legislature, our State Courts, and the National Congress, I cannot help but allow a spill-over of such interests into the area of our Arkansas Bar Association.

Malpractice Insurance. Don't ever think for a moment that doctors have a lock-up on problems with malpractice insurance. There are real problems in malpractice insurance as it pertains to our profession and other professions as well as the 86/Arkansas Lawyer/July 1977

medical profession. The problem, quite frankly, is availability of coverage and rates for that coverage. We have very limited information within our association to prepare us to be very critical of the recent rate increases that we have been forced to pay. If you are not aware of it, you wiil become aware of the fact that there is only one carrier currently writing new legal malpractice Insurance In the State of Mansas and that is the carrier that is currently writing the bar group coverage. It is the only carrier offering a choice of either an occurence or clalms.."ade type policy. I hope that in 1977-78, we can make real strides to alleviate the concern of our members along with other professionals in this area.

No-fault Insurance has never really left us. Some of our profession have been lulled into the thought that it has gone away. Its ugly head is rearing again in the National Congress. It is an issue with which not only the trial lawyer should be concerned. It is an issue that every person who has the honor of being termed "lawyer" should be concerned with. It is a device whereby it is hoped by its proponents that justice can be expedited in a "bargain basement" manner by eliminating what has heretofore been considered a right to trial by jury of one's peers to seek redress for a private wrong. The promise of reduction in insurance rates has not been proven throughout the expensive lessons of the states who have no-fault. In truth, it has not been successful in reducing insurance rates, as promised. Those states

which hopped on the early bandwagon on the promise of reduction in insurance rates have learned through experience that no-fault was not and is not the panacea as promised. In reality, no-fault insurance Is a threat to the jury system Itself.

There are now proponents of nofault in the products liability area.

Proponents want to eliminate the contingency fee system and go to a Workmen's Compensation type system. The threat is not to the lawyer's pocketbook as newspaper articles would lead one to believe, but removing the contingent fee wou Id take away the average citizen's opportunity to obtain justice through the pursuit of particular types of claims that are amenable to the contingent fee such as products liability, personal injury, damages cases. The contingent fee system is the fairest system that I have ever come across to enable all clesses of the American people to obtain justice for that particular type of claim that is amenable to the contingent fee.

Along with the attack on the contingency fee system is the real challenge of legal advertising. If I can believe the articles that I read in the various bar journals that come across my desk, it appears that actual newspaper-type advertising and perhaps press-agentry is just around the corner. This is an issue that we must face and resolve to our satisfaction, the satisfaction of the public and as well the satisfaction of the Justice Department. Legal advertising also leads into lawyer speciall-

zallon, an issue, likewise, which we must face and resolve satisfactorily.

Chief Justice Warren Berger has pretty well laid the law down to The Judicial Conference of the United States that there will be more strict enforcement of disciplinary ma"ers before the Bar. I sincerely believe that if we do not look into the matter carefUlly and if we do not discipline our errant members, we are headed for control of our groups by outside agencies and outside forces into which we will have very little input.

We have a great number of young men and women graduating from law schools today. I am certain that if anyone would do a study of our present bar by ages, he would find that the people under 35 outnumber everybody else in the bar. Therefore, we must aim many of our activities of the Bar to the needs and Intert'sts of the new adml"ees of the Bar. The new admittee comes into the legal profession only to become disappointed, disenchanted and without a job. I am going to ask the appropriate committees of our association to try to work together in an effort to find avenues to help these young admittees to honorably practice law within our profession. Some people have suggested that we have abandoned many areas of law practice because busy lawyers have found some areas either unproductive, unprofitable, and/or uninteresting, such as the simple deed, the simple will, the simple contract.

Therefore, the abstracters have filled the void on the simple deed, the real estate broker on the contract (regardless of the Supreme Court's decision), and a few years back Gibson's Discount Store tried to fill the simple will void by printing and selling a ten cents form over the counter. So, I think it behooves us to make the effort to try to educate our people in regard to the unauthorized practice of law, be more vigorous in trying to determine what is an unauthorized practice, and then having the courage to try to do something about it. The correction of such might help to generate practice for these young admillees and give us an opportunity to deliver legal services to the public which can be afforded by the public and still give a profit to the lawyer.

I predict that legal Insurance will be a new fringe benefit that labor

forces will strive to achieve for employees. But in the meantime, the delivery of legal services to the general public must be provided, and we must work together to devise plans whereby we can fairly and economically and profitably deliver such.

Another area of responsibility which lawyers have virtually abandoned is the area of political office.

Let's quit kidding ourselves and deluding ourselves into thinking that lawyers own or control the State Legislature. There was a time in the past when the lawyer-trained individuals were active in the State Legislature and were looked to for guidance and did exercise a great deal of influence. Again, the busy lawyer rarely runs for such an office.

We do not control either the House or the Senate by our membership.

We no longer extend the guidance and influence into the Legislature that our profession shou Id. We must be realistic and acknowledge that the busy lawyer will not run for such office, yet our influence is needed. Therefore, we shou Id look to what has worked successfully for other state associations and that has been the creation of a Lawyers' Political Acllon Comml"ee. The name really doesn't mean very much, but for the moment, we can call it LAWPAC. The purpose of this would be to raise money to invest in political campaigns. The proceeds would be used to help our friends achieve political office. We would not ask a candidate to give us a prior commillment on how the candidate will vote. We would only ask

that our position will be listened to.

We want persons in office that we can look at and talk to. We need money to help these people get elected. This has been a tried and true system and used over the many years by labor forces, by the medical profession and by other groups, and it will continue to be successfully used. We must be realistic and acknowledge that it takes money to carry on an effective lobbying activity in the legislative halls of this state. I am going to do my best to try to get this off the ground and in action and ready for the next elections of this state. I firmly believe that the legal profession must not abdicate its responsibility to people. If we as lawyers are too busy to run for the state Legislature, then we must work through the use of funds and a political action committee to meet our due responsibility to the people in the formulating of laws for our state.

I earnestly solicit your comments, you input. I would like very much to be invited to your local Bar Associations and hear your thoughts. My job is not to tell you how we are going to correct these problems; my job is to let you know of the pressing concerns, needs, and to try to take your input so that all of us can work together to deal with the problems facing our profession in the most effective manner for the benefit of all. This Association is your Association. Your leaders can do no more than you direct us and :1, help us to do.

.....

ARKANSAS BAR ASSOCIATION

Fall Legal Institute Camelot Inn, Little Rock September 15-17, 1977

Tax Institute Arlington Hotel Hot Springs December 1-2, 1977

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

July 1977/Arkansas Lawyer/87

COVER STORY - - - --

BILL ALEXANDER

by Dorothy Thomas Henry Woods, Jr.

"You willing to work in the future like you have In the past?" rumbled the distinctive, Irish-flavored voice of Thomas P. 'Tip' O'Neill, who just a few days earlier had become the Democratic choice for Speaker of the House.

"Well, sir, I've been doing that all my life. I don't think I'll be changing," Congressman Bill Alexander replied.

"Then we want you to serve as Deputy Whip," O'Neill told the 42-year old Arkansas Congressman.

That phone call in December, 1976, thrust Alexander into one of the seven top House leadership positions for the 95th Congress. It would put to the test Alexander's philosophy of public service - "I am a player, not a spectator."

When the call came. Alexander was completing his fourth year as Assistant Majority Whip with responsibility for Arkansas, Tennessee, and Kentucky. He had recently been re-â‚ŹIected to a fiÂŤh term as Congressman for Arkansas' First Congressional District.

With Bill Alexander the habit of working hard had its roots in a chore of carrying coal from an outside storehouse to the family's fires, a task he took over when he was a six-year-old Mississippi County youngster.

During his first eight years in Congress, Bill Alexander had already demonstrated his willingness to take on battles against tough odds. His ability as a legislator could easily be charted in the legislative history of the 29 laws or bills which had passed the House bearing the marks of Alexander's influence.

It had been demonstrated when he took over the chairmanship of the almost dormant House Subcommitlee on Family Farms and Rural Development and organized hearings which helped focus attention on the failure of federal policies to respond to nonmetropolitan area com-

88/Arkansas Lawyer/July 1977

munity needs in the fields of community development, transportation, health, and mail service.

Alexander's working philosophy could also be seen in the role the Arkansan had played in the hard-fought House leadership campaign that culminated with the House Democratic Caucus electing Texan Jim Wright to the Majority Leader's post.

Of the campaign to put Jim Wright into the Majority Leader's position, Alexander had said, "If we lost, I knew that politically - I could end up in Siberia."

Alexander was one of Wright's earliest supporters. While his encouragement and active campaigning for the archedbrowed Texan was partially responsible for Alexander's selection as Deputy Whip, that choice is also attributable to the Osceolan's uncanny perception of the mood of the country and his colleagues.

"I felt that I had served in Congress long enough to actively promote a leadership response to a genuine need in this country," Alexander says. "The American people have generally perceived the Democratic party to be dominated by several single-interest groups, though representing genuine interests, not often representing the interests of the Nation at large.

"By the same token, the American people have perceived the Republican Party to be dominated by big business. I concluded that the erosion of both parties has been due to the disaffection of the average American. The 95th Congress presented a great opportunity in the House of Representatives to elect a leader to speak to this moderate American. I put it on the line for Jim Wright."

The firm-spoken Wright, who sat quietly talking near the back of the House Chamber during the count of the final ballot, got the first news of his victory from Alexander.

"We won by one vote," Alexander told Wright just before the word began to filter through the Chamber and other colleagues started rushing to Wright with congratulations.

Becoming Deputy Majority Whip with responsibility for the Middle America states added a host of new duties to Alexander's already crowded schedule.

The way he sees it though, "It's another chance to speak up for the principles and things that I believe our people want the Congress to address."

In 1969, when Alexander was first elected to represent Arkansas' First Congressional District, he had become a member of the Committee on AgriCUlture. Two years later his schedule expanded with his appointment to a second committee, the Committee on Government Operations. During Alexander's third term he became Assistant Majority Whip, a Subcommittee chairman, and chairman of the Consent Calendar Committee. As a fourth term Congressman, Alexander was elected to the powerful and prestigious House Commitlee on Appropriations and continued as Assistant Majority Whip. Election to the coveted Com mittee on Appropriations requires members of the House to relinquish membership on all legislative committees.

Not only did his election to his fifth term presage his promotion to Deputy Whip, but, during the organization of the Commitlee on Appropriations for the House, he changed Subcommittee assignments. He retained his spot on the Subcommittee dealing with the budgets for the Departments of State, Justice, and Commerce. the federal Judiciary, the Federal Communications Commission, the Federal Trade Commission.

Legal Services Corporation, the Small Business Administration, the U.S. International Trade Commission, the Arms and Disarmament Agency. and a number of other Agencies and Commissions.

He became a member of the Subcommittee on Agriculture which reviews and makes recommendations on the budgets for the Department of Agriculture, the Farm Credit Administration. the

Commodity Futures Trading Com路 mission, and the Food and Drug Administration.

Alexander also tool< a seat on the Subcommittee on HUD and Independent Agencies Appropriations which oversees the budgets for the Department of Housing and Urban Development, the Environmental Protection Agency, the Federal Home Loan Bank Board, the Veterans Administration, the National Aeronautics and Space Administration and eleven other Offices, Agencies and Commissions.

In addition to his Appropriations Committee war!<, Alexander has found that the tasks of attending two Leadership meetings a day to set the daily House legislative program and count heads on Carter Administration proposals, keeps

him in the Capitol and on the House floor far more hours than in the past. It means that between 10 a,m. and 6 p.m. each day he gets little time in his Cannon Building office.

He talks with his staff by phone and works with them in an anteroom just off the House floor. More often than in his office, he sees visitors in the Rayburn Room a few seconds walk from the House chamber.

Of his work habits, Alexander recently said, "I don't know anything but work.

It's all I'm good at. My staff? My only rules are that they be loyal, smart, tough, and hardworking. Loyal to the interests of the First District, and smart enough, tough enough, and hardworking enough to help me get the jobs done that need doing for the First District."

In addition to his heavy schedule in Washington, it is a rare month that passes without Alexander spending at least two working weekends In the First Congressional District.

Alexander credits the influence of his family, William V. 'Lefty' Alexander, Sr., his father; the late Mrs. Spencer Buck Alexander, his mother; and Buck Alexander, his brother; with helping develop his attitude toward work. "From them I learned loyalty, discipline, dedication, and diligence," he says. "Loyalty is the greatest virtue - loyalty to family, country, and church."

He had lots of jobs to follow the hauling of coal to the home fires. He worked as a paper boy, a grocery boy, a store clerk, a farm laborer, a construction laborer, and operator of a college laundry service earning part of his college expenses.

"What was my ambition when I was young? I wanted to go to college," re-

continued on page 90

President Carter met with Deputy Whip Alexender and other House leaders last December to map out priorities for the new President and fhe 95th Congress.

Alexander questions Director of the Arms Control and Disarmament Agency Paul Warnke before his 1977 appearance at a hearing of Alexander's Appropriations SuI>commlttae which has Jurisdiction over this agency.

Deputy Whip Alexander shares a laugh with House Majority Leader Jim Wright followln9 a Democartlc Staerlng and Polley Committee maetlng. This 24-member Committee sets the House schedule. as well as making Democratic commltt"" assign-

ments.

July 1977/Arkansas Lawyer/89

tical activities at Southwestern at Mem-

"The economic future of Arkansas,"

phis and the Vanderbilt University Law School pushed sports further into the background.

Alexander says, "depends on the es-

At Vanderbilt, Alexander was presi-

dent of the Law School student body.

After law school, Alexander became

tice as an associate of the Memphis law

For a number of years he has worked with agricultural producers, manufacturers, the finance industry, and educational institutions to encourage the formation of a Foreign Trade Institute to help maximize Arkansas' returns from

firm of Montedonico, Boone, Gilliland, Heiskell, and Lock. Then it was home to

the export of her products.

By 1974 his record of support and ac-

clerk for now retired U.S. District Judge

Marion S. Boyd. A year spent in this job was followed by two years of law prac-

Osceola, where he became a partner in

the firm of Swift and Alexander in 1963.

"I don't feel like I ever stopped practicing law," Alexander says. "The only difference now is that my clients are the people of the First Congressional

District and the people of small towns all over the Nation."

Bill Alexander had practiced law in Osceola for five years when he decided

Bill A.... neI.... conllnued /rom page 89 membered Alexander.

Alexander recalls that in the winter of his high school senior year his superin-

tendent called him in to ask if he wanted to enter the University of Arkansas. In

January 16-year-old Alexander enrolled at the Fayetteville campus. He came home in May to get his diploma from Osceola High School.

Though work has been his central focus, Alexander Is an outdoorsman and

sportsman. He has shared his love of sports with his nlne-year-old daughter, Alyse, who rides and takes care of her own horse. and ice skates. snow skis,

fishes, camps. hikes, and swims with her Dad. Alexander has always enjoyed swimming. He is a scuba diver and is one of

the lirst two Members of Congress to be certified as an aquanaut.

When the opportunity offers and there is time, he plays tennis. A jogger of long standing, he tries to get in a two-mile

work-out every day.

Two sports of his youth he has given up. Coached by Jack Brawley, nON Crit-

tenden County Judge, and managed by his dad, 12-year-old Bill Alexander became Northeast Arkansas Golden Gloves champ in his age and weight class. In high school he was co-captain for the champion Osceola Seminoles in his senior year, playing guard on offense and middle linebacker - or monster man, as Alexander says with a chuckle - on defense. That Osceola team went

to run for Congress at age 33.

He had been a member of the Mississippi County Quorum Court and

its Budget Committee; had helped organize the East Arkansas Planning and Development District and had been one of its directors; had been a leader in the organization and a member of the Arkansas Waterways Commission and the

Osceola Municipal Port Authority.

Alexander had also been a director of the Osceola Neighborhood Service Center and the Osceoia Planning Commission, and a member of the Osceola Civic Center Committee.

Alexander decided to run for

Congress when E. C. 'Took' Gathings announced his retirement.

"I got involved in politics in self-de-

fense," Alexander recalls. "I liked being a lawyer. But, my civic work had made It conspicuously obvious to me that the future of Osceola and other small towns rested with national policies.

路'1 saw that the best place to make a contribution to the Osceolas of America was in Washington."

Therein lies Bill Alexander's commitment to the small towns of America, a commitment which has given birth to a strong legislative record responsive to the community development and agri-

cultural needs of the people who live in the countryside.

leum, chemicals and other products

bound for other parts of the Nation and foreign ports. in 1970 the National River Academy, supported in the main by

studIes, part-time jobs, and campus poli-

9O/Arkansas Lawyer/July 1977

too long Washington has viewed the countryside and the city as separate nations with separate problems." Then he wondered, "What will it take for America to see that the urban crisis is no less than a transplanted rural problem compounded by size, congestion, cultural

fusion, and crime?" Finally, he added, "This is a mistake that Congress has

painstakingly

begun

to

attempt

to

correct through passage of major pieces

of legislation."

Among the laws to which Alexander referred were the Aural Development Act

of 1972 which he had sponsored and which was a landmark effort to put more action behind a Congressional commitment made two years earlier. The commitment, a part of the Agriculture Act of

1970 which Alexander had helped develop, called for " highest priority. ..." to be given to " the revitalization and development of rural areas. .. ."

During 1973 and 1974 Alexander had been and would be busy conducting a series of Congressional hearings, as chairman of the House Subcommittee

on Family Fanns and Rural Development, that would help persuade the Congress to adopt his proposals on countryside development. These in-

cluded: -

a provision in the Housing and

which earmarked for nonmetropolitan area use 20 percent of the community

tablishment of a national academy to train people for work on the barges and

1950. Alexander remembers the score.

After a stint in the U.S. Anny his

Majority Leader 'Tip'

months Alexander had proposed the es-

"Rison beat us 19-16 in Pine Bluff."

election campaign.

that the then

O'Neill picked Alexander to give the Democratic Majority Leadership's response to comments on rural development contained in the President's State of the Union message that year.

In his response Alexander said, "For

Community Development Act of 1974

to the state championship playoffs in

'Dukey' Speck, managed his 1976 re-

tivity in community and economic development was SO well recognized

Before he had been in Congress six

tow boats that ply the Nation's inland waterways carrying food, coal, petro-

Alexander's high school coach, Leslie

tablishment of foreign markets and the development of an efficient transportation system to those markets."

private industry money, opened at Helena, Arkansas, and began training its first students.

development block

grant lunds ad-

ministered by the Department of Housing and Urban Development; - provisions in the Federal-Aid Highway Act Amendments of 1974 to increase the funds going to countryside highway programs and to create the

"Off-System Roads" program to fund local highway and road improvements; and,

- provisions in the National Health Planning and Resource Development Act of 1974 to help ensure that in the operation of programs authorized by this law the needs and problems of countryside communities were fairly considered.

Later he would sponsor the job creatin9 proposal that became the Local Public Wort<s Capital Development and Investment Act. Convinced that" . . .food is now a tool of diplomacy, an instrument of peace, and the American farmer is on the front line in the fight for world peace. ...", Alexander also kept busy on this front.

Alexander believes, "The American farmer is indeed a crucial element in our Society. We must, therefore, ensure that our farmers receive fair returns for their labor and investments. If Government uses the products of the American farm路 er in its policies then the Government policy must equally ensure equity and fairness of treatment for our farmers."

Alexander's efforts included authoring the 1973 act amending the Emergency Loan Program provisions of the Con路 solidated Farm and Rural Development Act to block President Nixon's efforts to abolish the program of assistance to farmers whose crops and farming operations had been damaged by natural disasters; sponsoring the Agriculture and Consumer Protection Act of 1973 which made major improvements in food and fiber production programs; and sponsoring and leading efforts which brought about the passage of the Rice Production Act of 1975.

In commenting on the efforts to enact the rice legistation a WASHINGTON POST editorial said: " ...Millions of people abroad are hungry. The official policy of the United States is to try and help feed them. And, the United States needs to earn money in foreign trade. Thus do moral, political and economic considerations combine to provide an overwhelming rationale for the Rice Act. ..."

Alexander's legislative efforts have been broad ranging. In addition to his work on behalf of small communities and agriculture, he has sponsored, amended, or supported legislation in the fields of flood control, the environment, energy, education, federal budget reform, government reform, freedom of information, and privacy.

Alexander helped develop the legislation which created the Energy Research and Development Administration. The majority of the federal government's effort toward development of new energy sources and toward im路 proving the use and conservation of old energy sources is consolidated in this agency.

continued on page 93

An avid outdoorsman, Alexander hikes In the Sylamore District 01 the Ozark National Forest near Blanchard Springs.

Sinea he was first elected to Congress In 19(1}, Alexander has visited every school In the First Congressional District.

A devastating tornado struck Forrest CIty In early summer of 1974. Within hours of the dIsaster Alexander arrived to assIst In the clean-up end recovery operations.

July 1977/Art<ansas Lawyer/91

OUR "FOURTH OF JULY" -by Bill Alexander

Congressman Alexander looks forward from the United States Supreme Court Building.

I always look forward to the Fourth of July recess because it gives me an opportunity, as your Representative in Congress, to report to the people of Arkansas.

This year is a special report because it is our 200th birthday. I feel obligated to report on the condition of the American system of Representative Democracy, as proclaimed by the Declaration of Independence and defined by the Constitution of the United States of America.

On Thursday, I was seated in the Chamber of the House of Representatives participating in the various matters of national debate that were scheduled for consideration.

The House Chamber is rectangular in configuration. Above and around the Chamber are galleries, one reserved for the press and three for visitors who come and go in groups of 50 while the House is in session.

The activities of the Congress and the presence of the visitors in the gallery worked together in complete harmony.

Literally millions of peopie, American citizens and foreign, alike, come to the Capitol each year to see their government at work. Like so many other things we take for granted in America, like running water and free education. the open921Arkansas Lawyer/July 1977

ness of our government to the eyes of the world is somewhat unique.

Some look upon it with envy, some with appreciation. Some are critical. Some are cynical. But, all must agree that our government is open for all to see.

America is not the only Democracy on Earth. It is estimated that about 20% of the Earth's population are governed by Democracies, with 80% run by authoritarian rule.

But the American system is open and Americans are free, - free to do as we please; - free to work, free not to work; - free to worship, or free not to worship; and - free to speak, to say and do as our motivations guide us.

As I sat in the Chamber, thinking of the virtues of America, my mind's eye reflected on an experience I had in Greece a few years ago. I could not help but compare Greece, the birthplace of Democracy, to my own country.

At that time Greece was ruled by a military dictatorship. The newspapers were run by the government.

Secret police were much in evidence. The parliament was suspended and the Greeks lived in fear of oppression.

During that visit I stood on the

steps of the Parthenon and looked at the place where Pericles proclaimed Democracy and thanked Almighty God that America was still free.

Sometimes the obvious escapes us or eludes us but the millions of people that visit the capitol and observe their government in operation know that Americans are free and they know that the government exists by the consent of the governed.

As the visitors look from the galleries down into the Chamber what do they see?

They see their representatives from the South, North, East, and West, and from the farm, and from the city.

They see brown, black, White, and yellow Representatives who are elected by the people to go to Washington to debate the national issues, to work for improved opportunities, and to defend our nation from tyranny.

The visitors observe the most representative body in the world.

They see 435 representatives from the 50 states and four delegates from the District of Columbia, Puerto Rico, the Virgin Islands and Guam.

They see their Representatives dedicated to the American Dream.

They see their Congress perpetuating the ideals aimed at the preservation of human dignity through the practice of Democracy.

They see their Congressmen preserving the spiritual principles proclaimed by our forefathers; principles that have moved Americans to fight against tyranny and oppression.

As the visitors leave the gallery and continue to joumey through the Capitol-they must su rely remember that our system of government has withstood the test of time and the challenges of deceit and abuse of authority.

Anyone whose vision is not obscured must conclude that Democracy is alive and well on our Nation's 200th birthday.

Two hundred years ago, after the Continental Congress had unanimously adopted the Declaration of Independence--after the church bells rang out proclaiming Liberty throughout the land-lhe Congress appointed a committee, headed by Thomas Jefferson, to design a seal for our new country. The side of the seal bearing the eagle grasping the arrows of Defense in one claw and the olive branch of Peace in the

other is known to all of us. The reverse side is equally important. It depicts an incomplete pyramid with an eye at the top bearing the Latin words which, translated, say "God has favored our undertaking".

Today as I drove through the First Congressional District, I observed America A bountiful land, blessed with one-half of the tillable soil on earth, that has produced the highest standard of living for its people of any nation on earth. A land which is rich with beauty, possessing magnificent forests, beautiful rivers and glorious mountains.

As I journeyed today I was reminded of the people in the small towns and countryside that I have come to know through my years of service to America.

On this day of humility and thanksgiving for the material blessings of this great land we must also be thankful for the spiritual blessings of our people, because Americans have been guided to believe in Freedom, Truth, Justice, Equality and Peace.

We must be thankful for a people who support the fundamental principles upon which this nation was built.

BlII A1ex.nd....

for every other sou rce of transporta-

continued from page 91 At the same time, Alexander has taken

tion... If this (gas) tax is enacted, we will be requiring the people of the heartland of America to carry this burden on both

action to block energy proposals which he felt unfairly treated some regions of the country and Arkansas in particular.

Equitable treatment of problems facing nonmetropolitan area residents has been a basic principle underlying much of Alexander's legislative work. It spurred him 10 lead a successful battle

in 1975 to defeat efforts in Congress to levy as much as 23 cents in new taxes on each gallon of gasoline and diesel fuel. Alexander was convinced this tax would discriminate against persons

living in areas with little or no public transportation service.

In an article on the energy proposal the NEW YORKER MAGAZINE quoted

shoulders. It is unfair; it is inequitable; it is grossly discriminatory against the vast

I am proud to serve a nation that aspires to the principles of Truth, Freedom, Justice, Equality, and Peace.

I believe that the legacy that we inherited from our forefathers will be passed on to our children and grandchildren in the Third Century and that they will be fully prepared to carry the Torch of Freedom for the next 100 years. ~,

At the end of a heated, long-running struggle the House agreed with Alexander's proposal.

In looking to the future, Alexander is

persuaded that "Four great challenges

majority of the people of this country

face our Nation as our Third Century begins - producing enough food for our

who do not have access to public trans-

people while responding to foreign

porlation...."

Arguing for passage of the legislation which became the Congressional

Budget Control and Impoundment Act of 1974, Alexander said in a 1973 speech " .. .For too long we have been tricked by the illusion that all the Nation's ills

wi II yield to doses of money - and that we have enough to bring about the cure now

The time for budgetary reform is "

market

needs;

developing

inde-

pendence through effective use of all our energy resources; striking a balance between production and environmental protection; and, achieving these goals within a democracy that strives for truth, justice, equality, and peace."

What has "Congressman Bill", as many of his constituents address him, learned since he came to Congress? "If you haven't run into a brick wall before

"Did you ever hear of anybody catch-

needs of the people was coming to a climax in 1975, Alexander told the House

noon, you really haven't had a good day," he says.

As a member of the Osceola High School track team. a youthfUl Bill Alexander probably had no idea the dis-

ing a subway in Osceola, Arkansas? . .Our city cousins can ride the bus to work...while our country cousins must not only ride to work in an auto-

" .. .It is irresponsible for the Congress to write a virtual blank check year after year for postal seNices without demanding some accountability from the

tances he would have to run later in his life. As a five-term Member of Congress. there is no doubt, however, that Bill Alexander is a long-distance runner.

mobile but depend on that automobile

national postal establishment. ..."

the following from Alexander's comments during the House debate:

As his four-year fight to make the U.S. Postal seNice more responsive to the

;}--

July 19n/Arkansas Lawyer/93

OYEZ • OYEZ

II

••

by Barbara Tarkington Membership Secretary

Joe C. Sarrett, Jonesboro. received the Hanan W. Sumners award from the Southwestern Legal Foundation at its annual April membership luncheon in Dallas. Herbert H. McAdem., Little Rock, has been named chairman of the first Board of Governors of Ar1<ansas State University Foundation. Mike Beebe, Searcy, has been elected chair· man of the Board of Trustees of Ar1<ansas State University and Stan R. Langley, Jonesboro. has been appointed

by Governor Pryor to a five year term on the board. Fred M. Picken., Jr•• Newport, will receive an honorary doctor of laws degree from the U of A Board of Trustees at its 103rd annual spring commencement. James R. Ead., Jr., Little Rock, has been named chief counsel for the state Finance & Administrative Department's office of Legal Services.

George Steel, Nashville, has been elected chainman 01 the State Police Commission. Ben E. Rice. Jacksonville. has been appointed to the office of director of the Pulaski Conservation District.

Sam H. Boyce has been elected the 23rd president of the Newport Country Club and Jamel McLarty will serve as president-elect. Larry Wallace, No. Little Rock, has been named chairman of the Governmental Affairs Council of the Metropolitan Chamber of Commerce.

Gary R. Shahon, Little Rock. has been appointed executive director of the Arkansas Workmen's Compensation Commission. He succeeds H. O-=ar Hlrby who became an administrative judge for the commission. J. Michael Shaw has been elected president of the Standard Savings & Loan Assn. of Fort Smith. The City of Wilmot has appointed Timothy R. Tarvin, Hamburg, as City Judge. Herman L. Hamlhon, Hamburg, has been appointed by Governor Pryor as special justice of the Arkansas Supreme Court to replace Justice Darrell Hickman who disqualified himsell from the hearing of the case. Judhh Rage.., No. Little Rock, has been appointed chairman of a newly formed Board of Visitation authorized by the Juvenile Code of 1975. Leland Leatherman, Little Rock, has been appointed to the state Stadium Commission. Robert H. Holmes, Pine Bluff, 94/Ar1<ansas Lawyer/July 19n

has biaen named "Boss of the Year" by the Jefferson County Legal Secretaries Association. Greg Brown, Little Rock, has been named executive director of the Election Laws Institute and Richard H. May., Little Rock, will serve as its legal committee chairman. James O. Burnett, Lonoke, is the new prosecuting attorney for the 17th Judicial District.

Dan Kennell, Brinkley, has been named his deputy for Monroe County and Da.ld G. Henry, Stuttgart, will serve in Ar1<ansas County. A biography of Sid McMath has been written by Jim Lester of Little Rock entitled "A Man for Ar1<ansas: Sid McMath and the Southern Reform Tradition". Mr. McMath received a Distinguished Alumnus Citation at the May 14 commencement ceremonies of the U of A at Fayetteville. William H. Kennedy III, formerly of Little Rock. has moved to Arlington. VA. Charleo J. Harper, formerly of Warren. has moved to Fordyce.

Thom.. S. Arnold, formerly of Texarkana. has moved to Avon, CO. Charleo G. HolII., formerly of Missouri, has moved to Basking Ridge, NJ. Ralph M. eloar. Jr. has opened an office for the general practice of law in the First Nat'l Building, Little Rock. Canman Holder La.ender, formerly of Little Rock & Texarkana, has opened a law office in Lawrenceville, GA. Michael Walden has joined Par1<er & Henry of Jonesboro with offices now located at 630 S. Main. Paul S. Rainwater, formerly of EI Dorado. has entered into partnership with Richllrd E. Grtffln of Crossett and formed the law firm of Griffin & Rainwater. The law firm of Crouch, Blair, Cypert & Waters.

Springdale, have announced that James M. Roy has been made a partner and that Jame. E. Crouch has become associated with the firm. Thomas M. Bramhall, formerly of Benton,· has become a partner in a newly formed law finm in lillie Rock; Matthews, May-s, Bramhall & Glaze. A partnership has been formed in Bentonville for the general practice of law under the firm name of Goclo " Do..ey. A Little Rock law firm has been formed under the name of Solloway, Cronkhite " Jackaon. A Camden law finm has been formed under the name of Fau.M',

Goza " Rollina. Eugene R. Warren, Litlie Rock, is now of counsel for the law firm of Cearley, Gitchel, Bogard & Mitchell, PA. The law finm of Smith, William, Friday, Eldredge & Clark have changed its name to Friday, Eldredge & Clark with William J. Smith and John T. William. to serve as counsel. Terry F. Wynne has become associated with the Pine Bluff law firm, Bridges, Young, Matthews & Davis. Michael R. Bearden is associated with Moore & Gibson of Osceola. Palll Hudaon Mark. has become associated with the law firm of Brown & Etter. PA. with new offices at 807 W. Third, Little Rock. Neal T. Sullln., formerly of Little Rock, has become associated with George M. Callahan of Hot Springs and Paul Sullln. of counsel. Richard P. Wacker has become associated with the Paragould law firm of Cathey, Goodwin & Hamilton. Hugh Spink., Little Rock, spoke on consumers responsibilities concerning contracts to students at Sylvan Hills Senior High School.

Richard Hatfield, searcy. spoke to the Fairfield Bay Lions Club at their May meeting. John S. Selig, Little Rock. was guest speaker at an April dinner of the Ar1<ansas Chapter of the Financial Executives Institute. Robert S. Hergreves, Hot Springs, was guest speaker at the annual VICA-DECA Employer-Employee banquet at Forrest City in March. Jerry B. Douey, Bentonville, conducted a wor1<shop on Unauthorized Practice of Law during the Ninth Annual Convention of the Arkansas Association of Legal Secretaries held at Bentonville in April. Boyce Davl., Lincoln, spoke at a May meeting of the Lincoln Ministerial Alliance. U. S. Attorney General Grltfln Bell spoke at a banquet of the Pulaski County Bar Association held in May. In January the Union County Bar Association met and elected new officers: Ronald L. Grigg., president; Jerry E. James, vice president; and Floyd M. Thomes, Jr., sec-treas. The Independence County Bar met in February and its new officers are: H. Oevid Blair. president; John Norman Harkey, president elect; and IIemIce McSpadden, sec-treas. Conway County Bar Association met in February and elected Allen

New Guide On

JUDICIAL OPINION WRITING Copies of "Manual on Appellate Court Opinions" by B. E. Witkin of the San Francisco Bar-a wellknown expert on judicial opinions-are now available for purchase. The manual, published under the direction of the California Center for Judicial Education and Research, is primarily designed to assist appellate judges in writing opinions and in performing the appellate court's decisional function. It will also be of interest to lawyers and law students nationwide. The manual is sponsored by the Foundation for Judicial Education, San Francisco, California, and is published and available from West Publishing Company.

This comprehensive, practical manual covers everything from the mechanism of writing judicial opinions to the delegation of appellate work to the jUdge's staff. The author has selected decisions mainly from the California Supreme Court and Courts of Appeal to illustrate the fu nctions, content, form and style of appellate opinions.

The cases were chosen for their broad coverage of currently active fields of law: civil and criminal, substantive and procedural. The cases illustrated should prove useful to justices of any reviewing court in the state or federal systems.

The author, B. E. Witkin, was associated with the California Supreme Court for some 20 years, first as a law clerk, and then as a Reporter of Decisions. He is now a frequent lecturer, consu ltant and advisor to the judiciary.

Manual on Appellate Court Opinions was written especially for appellate judges and their research staff. It will also serve as an excellent reference for lawyers, law teachers and law students.

More information on the 280-page hard cover edition of Manual on Appellate Court Opinions may be obtained from West Publishing Company. ~.

....

For accuracy and research confidence you need consistency in your case taw headnoting.

West's Arkansas Cases gives you just this kind of consistency.

All cases are analyzed and head noted by a staff of highly trained and highly skilled editor/ iawyers who utilize the time-tesled Key Number System of classification.

• Updating a case is an automatic mechanical process with the Key Number System because of its built-in consistency. Arduous searching to be sure a case has not been overruled is eliminated with West's system.

• Publishing of bound volumes as well as advance sheets is done by the same publisher.

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•

Your practice deserves the kind of consistency West's Arkansas Cases offers. Call Elmer P. Roberts at 5011224-5471 or write him at 11823 Teton Forest Drive, Uttle Rock, Arkansas 72112 today tor more details...includlng cost which you wlll find 10 be amazingly low.

OYEZ, OYEZ (cont.)

Gordon, president; Howard Yates. vice president; and Char•• Eddy, sec-treas.

In April Mike GibBOn was elected president of the Osceola Bar Association;

Claude E. Lynch, vice president; and Ralph WilBOn. Jr., sec-treas. The Cross County Bar Association met In February and elected new officers: John N. Killough, president; DeLoa. McKnight, vice president; and J. L. (Jim) Shaver, sec-treas. J . .........

July 19n/Arkansas Lawyer/95

Recent Developments In The Federal Estate And Gift Tax Laws

by John T. Tuohey Virtually all lawyers are faced with the preparation of testamentary instruments for clients and, to better serve these clients, a lawyer should attempt to do some estate planning for these individuals. The Tax Reform Act of 1976 (P.L.94-455 and hereinafter referred to as the "Tax Reform Act") contains. withoul doubt, the most sweeping tax measure in the area of estate and gift taxation enacted by Congress since the passage of the Internal Revenue Code of 1954. In general, these revisions are designed to narrow and restrict some of the common forms of estate planning techniques and to provide some tax relief to small and medium sized estates. Except for certain transitional rules, these new measures apply to estates of decedents dying after December 31. 1976, and to gifts made after that date.

Unilled Tex Rete.

The Federal estate tax is an excise tax levied upon the transfer of a decedent's taxable estate; and is not a tax upon the property per .., or a tax upon the right of an heir to receive such property. The Federal gift tax is likewise an excise tax imposed upon the lifetime transfer of property. without full and adequate consideration, by an individual. Prior to the passage of the Tax Reform Act, the estate and gift tax rates were different. with the gift tax being equal to approximately 75% of the estate tax. Formerly, the minimum and maximum estate tax rates were 3% and 77% respectively, with the comparable gift tax rates being 21/4% and 573/4%.

The Tax Reform Act now dispenses with two separate progressive tax rates for estates and gifts; and established a

unified tax rate by amending section 2001 of the Internal Revenue Code. The new minimum and maximum tax rates in the unified table range from 18% to 70% respectively. Generally, estate taxes are calculated by applying the new uniform rate to the cumulated transfers and subtracting the gift taxes payable. Gift taxes are computed by applying the uniform rate to lifetime taxable transfers and subtracting the taxes payable for prior taxable transfers. Life time transfers and transfers made as a result of death are cumulated for estate tax purposes. The new unified rates have, to a large extent, removed most of the incentive from lifetime transfers 85 an effective estate planning tool. It is no longer possible to save taxes by making gifts because such gifts will be taxed at the same rates as transfers made at death.

Unilled Tax Credit The difference between an exemption or deduction and a credit is that the former is a reduction of the amount to which a tax rate Is applied, and the latter is a reduction of the amount of the tax liability itself. Prior to the passage of the Tax Reform Act. estates had an exemption, or reduction of the size of thetaxable estate, of $60,000.00. Taxable gifts had an exemption applicable to transfers made during lile of $30,000.00. Both of these exemptions are no longer available. but have been replaced by a unified lifetime tax credit found in new Internal Revenue Code Sections 2010 and 2505. This new unified credit may be claimed completely during lifetime, completeiy by the decedent's estate; or partially used during lifetime with the balance used by the estate. This credit is

to be fully phased in over a five-year period and the table below indicates the periods. amount of credit, and equivalent exemption: Equlvelent Veer Credit Exemption 1977 $30,000.00 $120,666.00 1978 34,000.00 134.000.00 1979 38,000.00 147,000.00 1980 42.500.00 161,563.00 1981 47.000.00 175,625.00 The result of this new credit. if fully available to the estate. means that. il after all other deductions, a taxable estate in 1977 is $120.666.00 no eSlate tax Is due. This maximum no tax liability estate size increases as indicated in the above table. Only $6.000.00 of the unified credit. as noted above, may be applied against gilts made after December 31, 1976, but prior to July 1, 1977. This transitional rule would indicate that. jf a client desires to make a gift during this period and desires to pay no tax, and if the gift tax liability would otherwise ex. ceed $6,000.00, lhe client should be advised to postpone the gift unlil after June 30. 1977. when no restrictions apply to the use of the unified credit for gifts.

In accordance with the new unified credit, upward adjustments have been made with respect to the size of a gross eSlate which requires the filing of an estate tax return. The table reflects these new minimum sizes:

Veer 01 Deeth 1977 1978 1979 1980 Thereafter

Eatele Size $120,000.00 134.000.00 147.000.00 161,000.00 175,000.00

John T. Tuohey is an associate wilh Ihe Utile Rock law firm of Barber, McCaskill, Amsler & Jones, and a certified public accountant. He has leclurer status with the University of Arkansas and Webster College. He was a speaker on "Fringe Benefits" at the highly successful "Corporate Law Practice" Seminar at Ihe Arkansas Bar Association's 1977 Midyear Meeting. He is a member of various professional groups.

96/Arkansas Lawyer/July 1977

below estate

â&#x20AC;˘

Fann. And CIo..ly Held 8u.lne....

Of particular interest to lawyers in states such as Arkansas, which contain a large number of valuable farms, is new Internal Revenue Code section 2032A. This Section allows, if certain conditions afe met. a special valuation procedure for real property used in connection with farms or closely held businesses. In general, this new valuation method allows such property to be valued upon the basis of its "current use", rather than, as has been the case, upon its "highest and best use". However, in no case may this alternate valuation procedure reduce a gross estate by more than $500,000.00.

Generally, for this new procedure to apply, the decedent must have been a resident or citizen of the United States, the property must be located in the United States, it must pass to a qualified heir, a required agreement must be filed, the decedent or a member of his family must have owned the qualifying property and have sUbstantially participated in the operation of the business in five of the decedent's last eight years, and percentage tests must be fulfilled.

A qualified heir is a member of the decedent's family who acquired the property from the decedent or to whom the property was passed. If the property is further transferred from a qualified heir to a member of his family, the member of his family shall be treated as a qualified heir. The tax benefits realized by the estate under this new alternate valuation may be recaptured by the Internal Revenue Service if the qualified real property passes out of the family or ceases to be used as a farm or closely held business within fifteen years of the decedent's death and the qualified heir is still alive. Likewise. recapture may arise if, during any eight+year period ending after the decedent's death and before the qualified heir's death, there have been periods aggregating three years or more during which there has been no material participation in the operation of the farm or closely held business by the decedent or by a member of his family or, after the property was held by a qualified heir, by the qualified heir or by a family member.

The election by the executor of the estate to use this special valuation procedure must be made no later than the time for filing the estate tax return (normally nine months from the date of death unless an extension is obtained). Further, all persons for whose benefit the election is made must execute an agreement to be personally liable for recaptured taxes on the SUbject property.

The percentage test requires that the adjusted value of the real and personal property used in connection with the farm or closely held business comprise

at least 50% of the adjusted value of the decedent's gross estate, and only 25% of this adjusted value need consist of qualified real property. For purposes of these two percentages, the special use value is not used in determining the value of the property included in the gross estate.

In valuing farms the new law furnishes a formula. The actual or use value is considered to be the average annual gross cash rental for comparable farm land in the same locality, less the average annual state and local real estate taxes for comparable property, divided by the average annual effective interest rate for all new Federal Land Bank Loans.

Factors considered in valuing closely held businesses and farms, if the above formula is not used, are: 1. Capitalization of income.

2. Capitalization of fair rental value.

3. Assessed land values.

4. Comparable sales.

The income to be capitalized is what the property could expect to yield over a reasonable period under prudent management. The comparable sales factor limits comparisons to property far enough removed from cities or resorts so that nonagricultural use is not a significant valuation factor.

This new procedure presents a vast opportunity for the knowledgeable lawyer to save the estate of a deceased client substantial sums of tax dollars.

However, the lawyer should take note of the pitfalls, particularly the recapture provisions, which are also present.

Gift. Within Three Years Of Death Before December 31, 1976, all gifts which were made within three years 01 the death of the decedant were subject to a rebuttable presumption that such gifts were made in contemplation of death and were subject to inclusion in the estate. If it could be established that such gifts during this three-year period were made with living motives inclusion in the estate could be avoided. This presumption gave lawyers ample room for planning and argument and was the subject of vast litigation.

Now, all gifts made within three years of death, except the $3,000.00 annual exclusion, will be automatically included in a decedent's estate irrespective of the donor's intent, as provided in amended Internal Revenue Code section 2035.

Prior to the Tax Reform Act, one tax advantage of gifts was that gift taxes paid reduced the size of taxable estate remaining when the donor died. Amended Section 2035 now requires the inclusion in the estate of gift taxes paid on gifts made within three years of death. In other words, the formerly excluded taxes will now be "grossed up" into the donor's taxable estate.

Some tax advantages for gifts still

remain, Gifts made more than three years prior to the donor's death will not be "grossed up" into the donor's estate.

Donors still remain entitled to an annual gift tax exclusion of $3,000.00 per donee.

Retention Of Voting Righi. In Stock In U.S, y, Byrum, 408 U.S. 125, 92 S.C.2382, 33 L.Ed.2d 238 (1972), the Supreme Court held that the stock of a closely held corporation was not includable in the decedent's gross estate where he irrevocably transferred the stock in trust, but retained the right to vote the transferred stock. Amended Internal Revenue Code Section 2036(a), applicable to transfers made after June 22, 1976, now requires the inclusion of such stock in the estate of a decedent if he retains the voting rights for his life, or for any period not ascertainable without reference to his death, or for any period which does not end before his death.

The new rule applies whether or not a decedent had a controlling interest in the corporation and regardless of the capacity in which the decedent exercised the voting rights. If a decedent irrevocably transfers stock to a trust in which he is a minority trustee, it might be argued that as a minority trustee, the decedent did not retain full voting rights with respect to the stock since he could conceivably be overruled on any vote by the majority of the trustees.

Retirement Plan.

Until December 31, 1976, Internal Revenue Code Section 2039 excluded from a decedent's gross estate lump sum distributions from qualified corporate pension and profit-sharing plans.

This exclusion was applicable only to the extent that it is not attributable to contributions or payments made by the decedent himself, and was available whether paid in the form of an annuity or other payment. Under the Tax Reform Act, effective after December 31, 1976, an estate may continue to exclude annuity payments from corporate qualified plans, but may no longer exclude a lump sum distribution described in Internal Revenue Gode Section 402(e) (4). It is therefore highly advisable to review all lump sum distribution provisions' of existing plans.

Prior to the Tax Reform Act, a distribution from an individual retirement account (IRA), individual retirement annuity, retirement bond, or H.R.10 Plan, was not excludable from the decedent's gross estate. FQr decedents dying after 1976, the estate will be able to exclude the value of an annuity receivable by a beneficiary, provided the distribution is attributable to contributions for which an income tax deduction was allowable when the contribution to the plan was made. To be excludable, the annuity must provide a series of SUbstantially equal periodic payments to be made to a continued on page 96 July 19n/Arkansas Lawyerl87

Development., continued from page 97 beneficiary for life, or for a period extending at least 36 months from the date ot the decedent's death.

An employee's vested interest in a qualified plan may be community property under local law; and where a lump sum death benefit was distributed to a beneficiary other than the surviving spouse of the deceased employee, such spouse was formerly considered to have made a taxable gift of her community interest. Amended Internal Revenue Gode Section 2517 now excludes from gift tax the value of a spouse's community interest, to the extent attributable to tax deductible contributions.

Joint Intere.t.

Prior to January 1, 19n, the entire value of property held by husband and wife in survivorship forms of joint ownership (joint tenancy, tenancy by the entirety, etc.) created by one or both spouses was fully included in the gross estate of the first spouse to die. The only form of relief, under prior law, was the consideration furnished test, which excluded the portion of the value of the jointly owned property to the extent the surviving spouse furnished consideration for its acquisition.

With respect to joint interests created after 1976 and where the creation of the joint ownership constituted a taxable gift irrespective of the amount of consideration furnished, amended Internal Revenue Gode Section 2040 now includes in the estate of a deceased spouse 50% of the value of jointly owned real and personal property held by spouses in joint tenancy or tenancy by the entirety. The following requirements must be met to avail the estate of these new rules: (1) The joint interest was created by the decedent or his spouse, or both; (2) For personai property, the creation of the joint interest was in whole or in part a gift for gift tax purposes; (3) For real property, a gift lax election is made to treat the creation of the joint interest as a gift; (4) For a joint tenancy, only the decedent and spouse are joint tenants.

The election to treat the creation of the joint interest is normally made by the filing of a gift tax return for the creation.

Additions of value (e.g. mortgage payments) after the creation of the joint interest would also constitute gifts, and. if these additions exceed the annual $3,000.00 gift exclusion, payment of gift taxes may be required. However, mere appreciation in marlc;et value would not constitute taxable gifts.

The House Report in connection with this new provision states that the chain of title before the creation of the joint interest is immaterial. This situation raises 98/Arkansas LawyerlJuly 19n

the availability of recreating joint interests after 1976 to establish a new ownership that will qualify, but the recreation would be transaction subject to the gift tax.

Merltal Deduction Perhaps the most significant provision of the Tax Reform Act is the amendment to Internal Revenue Gode 2056 relating to the marital deduction. Previously, an estate was entitled to a marital deduction of a maximum 01 50% of the adjusted gross estate, if assets equal to that amount passed to the surviving spouse. For estates of decedents dying after 1976 the marital deduction is the lerger of $250,000.00 or 50% of the adjusted gross estate. This means that estates under $500,000.00 will be entitled to a marital deduction 01 $250,000.00 without regard to the 50% limitation. For estates larger than $500,000.00 the 50% limitation will apply. Taking this new marital deduction into consideration and coupled with the new increased exemptions, the following lists the maximum estate size, for the years indicated, before a potential estate problem exists: Veer Maximum Eatata Size 1977 $370,666.00 1978 364,000.00 1979 397,000.00 411,563.00 1980 1981 425,625.00 While this new marital deduction certainly represents a liberalization of current tax law, it does create the problem of creating a larger estate, and consequently, a larger potential tax, in the estate of the surviving spouse.

The gift tax marital deduction previously was 50% of the gift's value made to the donor's spouse. Amended Internal Revenue Code Section 2523 now allows a gift tax marital deduction of 100% of the value of the first $100,000,00 of gifts made to the donor's spouse after 1976.

The marital gift tax deduction is 50% of gifts to the donor's spouse in excess of $2OO,OClO.OO, with no marital deduction for gifts between $100,000.00 and $2()(),OOO.OO. However, the Tax Reform Act requires the estate tax marital deduction to be reduced by the excess of lhe gift tax marital deduction allowed to the decedent for lifetime gifts to his spouse after 1976 over 50% of the value of those gifts. In other words, if gifts are excluded from taxation because of the new marital gift tax deduction, the excluded portion in excess of the normal 50% marital deduction, will simply reduce the estate tax marital deduction.

Of greatest importance to the lawyer is a special transitional rule relating to clauses in existing wills which contain formulas for the maximum marital deduction. The purpose of this rule is to prevent the increase in the marital deduction from automatically occurring if

the decedent did not intend this as the result of his existing will. Under this special rule the increased estate tax marital deduction will not apply to the estate of a decedent dying after 1976 and before 1979, if all of the following conditions are met: (1) Property passes by reason of a decedent's death under a will executed before 1977 which contains a formula clause expressly providing that the spouse is to receive a maximum amount of property qualifying for the marital deduction allowable by federal law.

(2) The formula clause is not amended at any time after 1976 and before the decedent's death.

(3) The State of Arkansas does not enact a statute applicable to the estate which construes existing formula clauses as referring to the marital deduction allowable by federal law as amended by the Tax Reform Act. Assuming the Generai Assembly does not enact the statute referred to in (3) above, all wills with marital deduction formula clauses should be amended if the testator desires to take advantage of the new marital deduction. If no revision is made to existing formula clauses, after 1978, the clause will refer to the new marital deduction.

Orphen'. Exclualon Amended Internal Revenue Gode Section 2057 now permits a limited exclusion from a decedent's estate for property passing to a minor child (under 21). To qualify the child must not have any known parent (Le. there can be no surviving spouse) and is limited to $5,000.00 multiplied by the number of years the child is away from age 21 on the date of the decedent's death.

Generetlon â&#x20AC;˘ Skipping Tren.ler.

Prior to the enactment of the new law, a standard estate planning technique was to bypass estate taxes by creating a trust under which a beneficiary in one generation, for example a child, receives the income interest; and a beneficiary of another generation, for example a grandchild, receives the remainder. This technique permits the child to receive the income for life, but his estate wou Id pay no estate taxes.

The Tax Reform Act imposes a new transfer tax on generationpskipping transfers and applies to trusts and simi¡ lar arrangements which split benefits (e.g. income interest and remainder interest) between two or more generations of beneficiaries which are younger than the generation of the grantor. The market value of the property transferred is subject to the tax and is computed as though the person who is considered to have transferred the property actually transferred it to the person receiving the trust interest.

Tax returns are required to be filed

• •

and the tax is required to be paid by the trustee for taxable terminations and by the recipient for taxable distributions.

The new tax is generally applicable to transfers made after April 30, 1976, but is not applicable to trust providing income to the spouse for life with remainder to the children, and a trust providing Income to a child with remainder to a grandchild to the extent of 5250,000.00 for each child of the grantor.

Generations are normally determined along family lines to find the generation younger than the grantor's generation.

For beneficiaries other than family members, generations are measured from the grantor and determined by the age difference between the beneficiary and the grantor. An Individual born not more than 12 1/2 years after the grantor is a member of the grantor's generation. One born more than 12 1/2 years, but not more than 37 1/2 years after the grantor is a member of the first younger generation. Succeeding younger generations are measured by births within 25-year periods.

Whether a trust is a generationskipping trust is determined by whether there are trust beneficiaries in two or more generations younger than the grantor's generation. A trust beneficiary is any person who has a present or future interest or power in the trust. A person has an interest in a trust if he has a right to receive income or corpus, or he is a permissible recipient of trust income or corpus. A power in the trust includes a general or limited power of appointment, a power to draw down annually the greater of 5% of trust principal or 5,OClO.OO, or a power to invade the trust principal even though limited to an ascertainable standard. A right of management of trust property does not make the holder of the right a beneficiary. A power does not include a power to allocate income or corpus among lineal descendants.

Special rules provide for postponement of the tax in three cases by deferring the time when a taxable termination is considered to occur. These situations are: (1) Multiple beneficiaries in the same generation.

(2) Multiple interests or powers of one beneficiary.

(3) Unusual order of termination.

The generation-skipping tax is imposed only once upon each generation with respect to the same trust or interest.

The generation-skipping tax is substantially equivalent to the gift or estate tax which would have been imposed under the new unified rate schedule if the property had been transferred outright.

This indicates that the tax is determined at rates after adding the generationskipping transfer to all other taxable credits, state death taxes, expenses. and

other deductions.

New qualified disclaimer rules allow the trust beneficiary subject to the generation-skipping transfer tax to disclaim his interest within 9 months after the creation of the interest. This will generally avoid the problem, provided the beneficiary did not accept any benefits.

New Ba.i. Determination Under the provisions of prior law, property acquired from a decedent by inheritance received a "stepped-up" basis, which resulted in the heir having as his basis in the property the fair market value of the property at the date of death or alternate valuation date. The Tax Reform Act amended the prior law, and now property passing by testamentary disposition has the same basis in the hands of the heir that it had in the hands of the decedent, as provided in internal Revenue Gode Section 1023.

However, the Tax Reform Act contains a "fresh start" rule. This rule allows the basis of property to be adjusted, for purposes of determining gain (but not less) by the amount which the fair market value of the property on December 31, 1976, exceeds its adjusted basis on that date. The basis is also increased by federal and state death taxes attributable to appreciation, and all estates have a minimum basis on all its carryover basis assets of at least $60,000.00.

The new basis rule does not apply to personal and household effects up to $10,000.00 (provided the executor elects to exclude such items by the due date of the estate tax return), life insurance, and income in respect of a decedent.

For property other than listed securities, the December 31, 1976, value is determined by the following formula: The sum of: (1) Depreciation, amortization, or depietion allowed before 19n, and (2) The excess of the fair market value of the carryover basis property on the date of the decedent's death over its adjusted basis immediately before his death, reduced by the amounts contained in item one allowed over the entire holding period, and multiplied by:

number 01 day. decedent I. treated a. holding proparly belore 19n total number 01 day. decedent I. treated •• holding the properly.

The effect of this somewhat complicated formula is to shelter from taxation appreciation in property occurring before 19n by adding an adjustment to the basis of property acquired by testamentary disposition to reflect value appreciation occurring before January 1, 1977.

The Tax Reform Act has also limited the amount of basis adjustment which is allowed on property acquired by gift.

Prior law allowed such basis to be

reduced by the full amount of the gift taxes paid. The amended law allows a basis adjustment only to the extent of the gift taxes a«ributable to the appreciation in the property: Le. the tax attributable to the difference between the fair market value of the property and the donor's basis.

Other Mallar.

Amended Internal Revenue Gode Section 642(g) now prohibits the reduction of taxable gain upon a sale of property by an estate or trust, by deduction of selling expenses, if such expenses have also been deducted for federal estate tax purposes.

Quarterly gift tax returns need not be filed on post-1976 gifts unless the taxable gifts for the quarter plus all other gifts for the calendar year for which no return has been filed exceed $25,000.00.

If yearly post-1976 gifts do not exceed this amount, a yearly gift tax return is due by February 15 of the following year.

Amended Internal Revenue Gode Section 6161 permits, if the Internal Revenue service finds "reasonable cause" (previously undue hardship), that the payment of estate taxes may be deferred for a reasonable period of up to ten years. Executors may still elect to pay estate taxes due in up to ten annual installments where the value of a closely held business exceeds 35% of the value of a gross estate or 50% of the value of a taxable estate. If more than 65% of a decedent's adjusted gross estate is an interest in a closely held business, an executor may elect to pay all or part of the estate taxes in up to ten equal annual installments. Moreover, he may elect to defer the first installment for a period of up to five years. Interest is payable on the deferral at the rate of 5% on the estate tax attributable to the first $1 million of the farm or other closely held busi ness property.

In connection with the foregoing deferral of payment, new Internal Revenue Gode Section 632A provides for a special lien procedure pursuant to which an executor is discharged from personai liability. The executor and all parties with an interest in the underlying property must file a written agreement consenting to the creation of the lien and designating a responsible person to deal with the Internal Revenue Service as an agent for the beneficiaries and the parties consenting to the lien.

Lastly, under new Internal Revenue Gode Section 7517, the Internal Revenue Service may be required to furnish a written statement explaining any determination of valuation or proposed determination of the value of an item of property. The statement must be furnished no later than 45 days after a written request by the executor or donor, whichever is later. [J- __ July 19n/Arkansas Lawyer/99

LEGAL ECONOMICS

by Fran Shellenberger

A PRESCRIPTION FOR THE CLIENT IN A PALE BLUE SNIT A frequent problem in law offices is the client who visits or telephones his lawyer with a legal emergency, real or imagined, and learns from the secretary that the lawyer is: 1) in the oHice, but attending a ctosed-

door conference; 2) in the office, but has told the secretary he does not want to be disturbed for an hour or two; 3) away from the office for several hours; or 4) out of town for several days.

Upon hearing any of the above, the client with a real or imagined crisis panics. He becomes a "client in a pale blue snit" (CPBS) - not unlike a critically ill patient who needs immediate medical care from a doctor.

The CPBS exhibits the following symptoms: 1) he wants to talk to his lawyer RIGHT NOW, no matter where he is or who he's with; 2) he feels that his problem is the most important legal matter the lawyer handles; and 3) he KNOWS that he and his problems are more pressing than the client the lawyer is advising at the moment.

The client in a pale blue snit has a predictable behavior pattern. He ignores your secretary's offers to have the lawyer call him as soon as possible; he does not want to talk to her or to any other lawyer in the firm; he demands to see his lawyer NOW and threatens to take his legal business to another lawyer if he does not get the attention he demands.

At this point the secretary caves in.

She interrupts the lawyer, even though she's been instructed not to do so, and asks the lawyer to please come 10 her desk and talk to CPBS. The lawyer, unhappy at the interruption, may be in a pale blue snit himself. He excuses himself from the conference, walks to the secretary's desk as requested, and finds both client and secretary in a pale blue snit.

A little planning on the part of both lawyer and secretary can solve the

100/Arkansas Lawyer/Ju Iy 19n

problem of the CPBS or avoid it altogether. Here are some proven procedures you can follow in keeping the lines of communication open to your clients and improve client relations, especially with clients in a pale blue snit.

1) Introduce clients to your secretary during the client's first visit to your office, and tell the secretary, In the client's presence, something of the nature of the client's business if possible. When the secretary must convey information to the client on your behalf, or if the client must speak to the secretary in your absence, he'll be talking to someone he's met, a real person with a name.

2) If possibie, introduce the client to another lawyer and/or a paralegal in the firm who may assist him from time to time. The client wants to know the people who are working for him. He'll be satisfied to work with them in your absence if he's been introduced to them previously. Also, it will be easier for Lawyer No. 2 and the paralegal to correspond with or talk to the client in your absence if you have introduced them.

3) Agree upon a flexible procedure for handling calls or visits from clients when the lawyer is in, when the lawyer is in but not taking calls, and when the lawyer is out.

Here are some proven procedures for handling calls when the lawyer is in, but not taking calls: (Plan A) Instruct the secretary to offer to take a message, offer to have the lawyer return the call and try to set a time later that day for the return cail. The client will appreciate the secretary's assistance in getting client and lawyer together. Furthermore, he trusts the secretary to do this because he met her the first time he was in your office.

(Plan B) If Plan A doesn't satisfy the client, instruct the secretary to explain to the client that she's not supposed to interrupt the lawyer just now, but that she'll do so if the client feels it's really necessary. This reassures the client and lets him decide for himself whether he should interrupt the lawyer. Because the

choice is his, often he'lf decide thaf he can afford to wait a little while or let the secretary arrange another time for the meeting with the lawyer. Again, he trusts her to do this because he was introduced to her earlier.

(Plan C) If Plans A and B fail and the client is persistent, instruct the secretary to interrupt the conference and ask the lawyer to step out of his office or the conference room to see CPBS. Because these procedures have been agreed upon earlier, the lawyer will know that the secretary has already tried Plans A and B with no luck. Often, a five minute visit is all that's necessary to determine whether a real legal emergency exists or to reassure the client. If a genuine emergency exists, the lawyer will have been notified as soon as possible, even though he had left previous instructions not to be disturbed.

Here are several procedures which will assist those back at the office in coping with CPBS (and other oHice emergencies) if you are away from the office for an extended time, perhaps several days or weeks: 1) Arrange to telephone your office at pre-arranged times, preferably at the same time each day or every other day.

This alfows the secretary to tell CPBS, ""II be talking fa Mr. Advocate (her boss) later today (or tomorrow morning) and I'lf give him your message then. Telt me where you can be reached this afternoon and tomorrow in case he needs to call you directiy." I've seen CPBS heave a big sigh of relief as soon as he knows that the lawyer will receive his message in a reasonably short time, even though the lawyer is unavailable now. Also, because you've introduced the client to the secretary, and to another lawyer or paralegal, you can assist the client through them once you're aware of the nature of the problem.

2) Leave a telephone number where you can be reached or can receive a message during your absence. This allows your staff to call and leave the client's name and number for you. continued on page 108

(

~

1111

JURIS DICTUM

by C. R. Huie Executive Secretary, Judicial Department

A most important and progressive action by the Arkansas Supreme Court took place rscently when the Court

by Per Curiam Order established the Arkansas Judicial Planning Committee. Uttle publicity attended this occurrence, and to date, it has rsceived little attention from the public and the Bar generally. The importance of planning for the future cannot be overemphasized, since without the establishment of goals and standards, we are prone to "jes' grow" like Topsy. Such has been too true of our court system in the years past, and as a result we find ourselves In situations which eICist "just because

we've always done it that way".

The Judicial Planning Committee established by the Court, if it lives up to the eICpectations of its Chairman and members, will provide the impetus for long-range planning and the establishment of priorities for the orderly development and improvement of our court system.

Mr. Larry Jegley of the Judicial Department staff is presently the "Court Planner" assigned to work with the committee in the performance of its duties. The following is his report for the first four months of the committee's operation.

Judicial Planning Committee On December 6, 1976, the Ar!<ansas Supreme Court, by per curiam order, established the Ar!<ansas JUdicial Planning Committee. The order directed, among other things, that the Committee " .. .meet regularly to perform research and make recommendations on a long-range basis to improve the administration of justice in the courts of Arkansas," The court amended the order on January 12, 1977 to enlarga the Committee's membership from twelve to seventeen.

As provided by the amending order, membership of the Committee consists of one Supreme Court Justice. who serves as chairman, four Circuit Judges, four Chancery Judges, three Municipal Judges, the Attorney General or his designee, one Prosecuting Attorney, one criminal defense attorney or public defender, and two practicing attorneys. Term of membership

for all members is two years. Those appointed to serve on the Committee are: Justice Frank Holt; Circuit Judges Randall Williams (Pine Bluff), Tom Digby (Little Rock), Melvin Mayfield (El Dorado), and Maupin Cummings (Fayetteville); Chancery JUdges Robert Dudley (Pocahontas), Thomas Butt (Fayetteville), James Chesnutt (Hot Springs), and Eugene S. Harris (Pine Bluff); Municipal Judges Lindsey Fairley (West Memphis), Bill lsch (Mountain View), and Charles Yingling, Jr. (Searcy); Prosecuting Attorney Frank Wynne (Fordyce); Jack Lessenberry, Esq. (Little Rock); James H. McKenzie, Esg. (Prescott); William H. Sutton, Esq. (Little Rock); and Deputy Attorney General Arthur J. Anderson Impetus for establishing the Committee was provided by an Ar!<ansas Judicial Council resolution and by P.L. 94-503, the latter making funding assistance for such projects available through the Law Enforcement Assistance Administration (LEAA). The Judiciai Department provides staff assistance to the Judicial Planning Committee under an LEAA grant.

The first task for the Planning Committee, organizational matters aside, was to develop and submit to the Arlc:ansas Crime Commission the courts section of the Commission's comprehensive law enforcement plan for federal fiscal year 1978, which begins on October 1,1977. Since the target date for completion of the Commission's plan was March 31, 1977, the Planning Committee and its assistant were extremely bUSy

during its first few months of operation. It completed and submitted its work on time, requesting federal funding assistance for courts totaling $502,000.

The judicial Planning Committee's work consisted of a posi~ tion paper, problem analysis, and action programs to meet the problems discussed. The position paper cites the major problems the Committee perceives to exist in the judicial system. Six broad categories were utilized in its analysis of the problems: Substantive Matters, Management and Technology, Education and Public Relations, Facilities and Equipment, Per~ sonnel, and Miscellaneous Services, the latter consisting of bench books, clerks' manuals, and the like. The action programs the Committee developed are: Judicial Education, Judicial Support Personnel, Research and Development, Physical Resources Improvement, and Alternatives to Incar路 ceration. Each of the action programs earmarks categories.

During the upcoming year, the Committee will revi9'N grant applications for LEAA funding of Court projects, gather information and solicit input from the judiciary as well as the public, and in general get Its feet on the ground for the future.

The information~gathering phase of the Planning Committee's wor!< will probably be the most critical task facing it over the next several months; without proper input and data, effective, long-range planning is not possible.

As for the future, the Judicial Planning Committee will attempt to develop and refine an organiZed, far-reaching approach to planning for the Arkansas court system. Since judicial planning is a relatively new discipline nationwide, it is anticipated that a great deal of trial and error will be necessary before effective planning for future needs will be an integral part of court administration in this state. Growing pains aside, however, the concept of judicial planning and the practical applications of long-range planning presents an exciting and progressive challenge to the Ar!<ansas Judicial Department.

The Department welcomes the challenge and hopes that the Judicial Planning project will prove to be an effective tool to aid in the improvement of judicial administration in Arkansas. l-~

July 1977IAr!<ansas Lawyerl101

CONTEXT

By W. Christopher Barrier Chairman, Public Education Committee Arkansas Bar Foundation

HOLD THE PHONE!!

Lawyers have grudgingly gotten used to a remarkable array of office hardware, including automatic typewriters, portable dictaphones, sophisticated copiers and even small-sized computers. However, many lawyers work through their entire careers without ever mastering the use of that most basic in-

strument of communication, the telephone. Lawyers who stand before the United States Supreme Court without awe and who can spot a failure to disclose a material fact in a prospectus at twenty paces have been known to cringe when the phone rings and to hide to avoid its electronic insistence.

Why is it such a problem? In the first place, because everybody, including you. has one, needs one and uses one.

You can't get away from it. In the second place, you can't control it. Unlike your mail, which you can read wheJl you get to it. it rings when anyone wants to call you, regardless of what you're doing at the time. Very few lawyers can train their clients

longer than the actual time spent on the phone.

You can have your secretary take your calls. If she is merely going to refer them to you, it is a needless interruption for her

and no help to you. If she is simply going to tell them you're not there and take a message, that is usually something that can be done equally as well by the receptionist, without interrupting the secretary's typing, Then, too, unless your secretary sits outside your door, she may not know as much about your whereabouts and expected return as the receptionist.

The old oc....n play...

If your secretary or the receptionist is going to get the calls and screen them ("Who is calling?"), you end up telling a

to call only between the hours of 3:30 and 4:30 p,m. No lawyers

client or another lawyer, in a not too subtle way. that your time is more valuable than his and that you will decide whether or not the call is important enough for you to take.

Some offices try to identify the caller even when they don't screen calls. For example, the receptionist pr secretary may

at all can train their clients, abstract companies and other

ask "May I tell him who's calling?". so that they may announce

lawyers to be'prepared to accept the lawyer's calls between the hours of 8:30 and 10:00 in the morning, regardless of whatever else they may be doing,

"Good morning! Widget, Fidget & Dldget•••" Most lawyers attempt to manage, if not control, the telephone phenomenon by controlling how and when it is answered. Obviously, in most offices, even small ones, there is a specific person who is supposed to spend at least part of her time answering the telephone. In larger offices, this task may take all (and even more) of the receptionist's time. The question then is, who gets the call after the receptionist answers and the calling

to the lawyer "Mr. Jones on line 3." However, this distinction

may be lost on the caller, putting you in the unfortunate position of appearing to screen calls when you're not actualiy doing it. giving you the disadvantages without the advantages.

Then, too, if you don't take a call and call back later. what happens? Frequently, you end up talking to the receptionist or secretary and leaving a message to please (what else?) call bock.

How then can you avoid interruptions, for you and your secretary; avoid offending clients and fellow lawyers; and avoid fruitless call backs; while effectively utilizing a communications instrument even more potent than television?

party identifies the obiect of their call?

The lawyer can take his own calls. This obviously can in· terrupt his reading, research, dictation, thinking, sleeping or

anything else he might happen to be doing. If he is trying to dictate a lengthy brief or complicated pleading, answering the phone every five minutes (or at least what seems like it) can be irritating, disruptive and result in a loss of time significantly

102/Arkansas Lawyer/July 1977

Do the beat you can•..

Let's face it. These problems cannot be completely solved.

They can be managed, however, with good manners, common sense, some thought and planning - and some willingness to endure a certain amount of inconvenience as a necessary part of a profession which deals in people and their problems.

A lawyer must simply assume that he is going to have a certain amount of interruptions during the day. While you can try to discourage people from simply showing up without appointments (with varying degrees of success), people are going to call you whenever they feel they need to. You do it yourself.

Why should clients and other lawyers feel any differenlly? However, it is possible to plan your day around interruptions, at least to some extent.

For example, you may want to have your calls logged as to the time they come in for a week or so. You will probably find that they are bunched in the first hour or two in the morning and in the first hour or two in the afternoon. During those times, schedule work which requires the least prolonged concentration.

Or, for that matter, schedule items of work which will keep you from being interrupted. People understand that you don't accept telephone calls when you are in conference with someone else or if you are out of your office. If you simply mult have your calls held (because of a brief you waited tililhe last minute to do, etc.) try to anticipate when you'll be through, and have your receptionist or secretary communicate this to the client.

"He's tied up right now. Could he call you back around 1:30?"

Do II 1Ou....lI•..

If you're actually in the office and don't have any compelling reason not to answer the telephone, don't bother to route your calls through your secretary. It is at least slighlly irritating and wasteful for a caller to have to go through an intermediary, even if you don't screen your calls. It is certainly wasteful and unproductive to interrupt your secretary periodically, especially if

SCreen not..• Do not under any circumstance ecree" calls. even if you are in the midst of something and can only take certain selected calls. When your secretary or receptionist takes the call, instead of asking who is calling, she can simply take the callback message. If it is one of the designated callers, she can tell the caller "I'll have him call back right away," and bring you the message immediately. Or, depending on the urgency of your receiving the call, after she has taken the message, she can tell the caller that she will get you on the line. But never ever communicate to a client or another lawyer, through screening or otherwise, that you will take some calls - but not theirs.

Return thet call•..

Finally. you can't be in your office sining by the telephone ten hours a day. After all, somebody in the office has to go out and try those lawsuits and hassle with claims adjusters and you do have to eat lunch sometime. Consequently. you will receive phone calls which you will have to return.

In this regard, keep your receptionist or your secretary informed as to where you are and how long you expect to be gone. Get into the habit, where possible, of returning calls promptly after you return to the office. If your secretary or receptionist tells a client that you will be back later in the afternoon ("Could he call you around 4:OO?"), do your best to return that call about the time the client expects it. Clients will wait two or three days for a call to be returned if they can reasonably expect that it will be returned around the time indicated.

However, if they have to wait around indefinitely to have a call returned, even if it's only half a day, they are apt to find themselves a lawyer who does return their calls. After all, as indicated in a previous column, clients want competence, but above all they want concern. Nothing communicates unconcern more than a refusal to communicate.

The name of the game I. Communication••• Also, in this regard, it is well to remember that the very purPO" of the telephone is to communlcata. That's what clients who use it want to do. They do not require a personal conversation with you, whether they are calling you or you are calling them. You can avoid the irritating round of returns of returns of returned phone calls in a good many instances with the use of a me••age. For instance, you can leave a message as to the information you need. When the call is returned, the information can be left. You will have communlcetad, without ever talking to the person involved.

The telephone. Children learn to use the telephone almost from the time they learn their numbers. There is probably at least one telephone in this country for every man, woman and child. It is an invaluable source of communication and an inescapable instrument for interruptions. No one ever learns to play it perfectly. Bu~ there are ways to maximize the benefits and minimize the frustrations, with a little thought, planning and flexibility. she's doing something that requires some concentration, such as operating an automatic typewriter, proofreading a legal description, or working through a system you have developed for her. It is simply not a useful practice, and, in the case of a younger lawyer, smacks of pretentiousness. After all, if Bert Lance and W. A. Stephens can answer their own telephones, so can you.

(EDITOR'S NOTE: see s/so "A PrescrIption for the Client In s PsIs B/us Snlr' In LEGAL ECONOMICS, at page 108, thIs Issus.) .:tI., July 1977/Arkansas Lawyer/103

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A COMPENSABLE HERNIA UNDER THE WORKMEN'S COMPENSATION ACT A STRONGHOLD OF STRICT STATUTORY CONSTRUCTION -by Norwood Phillips INTRODUCTION Probably the most unique prOVISion appearing in the Arkansas Workmen'.

Compensation Act is Section 13(e),' which prescribes five essential requisites which must be proved in order to establish a compensable hernia. By saying that proof of such essential requisites is unique, I mean that it is unique within the framework of the Arkansas Workmen's Compensation Act to reQuire rigid elements of proof to establish a compensable injury, and not particularly in variance with at least twentyfive of our sister states who have similar statutes. 2 The purpose of such stringent requirements is said to be the establishment of the ultimate objective of the statute, which is to distinguish non-industrial congenital hernias from those definitely produced by trauma or effort at work. 3 WHEN A HERNIA IS NOT A HERNIA "When I use a word," said Humpty Dumpty, "it means just what I choose it to mean - neither more nor less."· The Arkansas Supreme Court has defined the term "hernia" as follows: "A hernia is a protrusion of any organ through an abnormal opening in the wall of the containing cavity. When the word 'hernia' or 'rupture' is used without qualification, it is intended to mean protrusion from the abdomen usually of the intestine through the abnormal opening in the abdominal wall."s The Supreme Court in the Bottoms BaplIst Orphan-

age vs. Johnaon, supra, held that a prolaspect uterus is not a hernia contemplated by section 13(e) and stated, by way of dictum, that although an intervertebral disc is sometimes referred to as a "hernia nucleus pulposus," it is not a "hernia" within the meaning of that term nor is a brain hernia. The Supreme Court has also held that the special requirements relating to hernias do not apply to hiatal hernias.'

Therefore, it is immediately apparent that section 13(e) applies only to hernias which are located in the abdominal area.

Bearing this well defined definition of a hernia in mind, we should turn to the requirements which must be proved in order to establish a compensable hernia.

THE REQUIREMENTS TO ESTABLISH A COMPENSABLE HERNIA In order to receive benefits for a her· nia, it is incumbent upon the injured workman to prove: (1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain or the application of force directly to the abdominal wall; (2) that there was severe pain in the hernial region; (3) that such pain caused the employee to cease work immediately; (4) that notice of the occurrence was given to the employer within 48 hours thereafter; and (5) that the physical distress following the occurrence of the hernia was such as to require the attendance of a licensed physician within 72 hours after such occurrenceJ

Requirement (1) is self-explanatory, and obviously requires either a traumatic experience in the nature of external force causing the hernia or a sudden effort or severe strain immediately preceding the occurrence of the hernia.

Likewise, requirement (2) is sellexplanatory. It should be noted that the severe pain requirement is solely a subjective one which lies within the sole knowledge of the injured workman.

There is no clinical method for measuring a person's tolerance to pain; what is excruciating pain to one may within tolerable limits to another. Nonetheless, the adjective "severe" modifying the noun "pain" has never been challenged by the defense. It is submitted that testimony of pain in the hernial region will fulfill the requirement that the pain is

·'severe.'· Requirement (3), that the pain caused the employee to cease work immediately, is not met if the employee simply stops working for a period of time, and then returns to wane At least, the cessation of work for 30 minutes and then the resumption of work will not satisfy the third requirement. 8 Notice to the employer, as required by the fourth requisite, may cause some consternation in that the employer is of· ten a corporate entity. It will generally suffice if a foreman, supervisor or other in authority is notified of the hernia.

Toney vs. C8lotex Corporation, WCC File C031242 (Opinion filed March 1, 1971).

Norwood Phillips seIVed as Chairman of the Arkansas Bar Association's Workmen's Compensation Committee during the past two Bar years (1975-77); and as Referee of the Arkansas Workmen's Compensation Commission, 1965~. He is a partner in the law firm of Shackleford, Shackleford and Phillips, E/ Dorado, Arkansas.

l06/Arkansas Lawyer/July 1977

Requirement (5), requiring the attendance of a licensed physician within 72 hours (which was 48 hours prior to Act 288 of 1975, effective July 9, 1975) has caused the most consternation. The Arkansas Supreme Court does not even recognize what would appear to be a reasonable excuse for not complying with the fifth requirement. in the case of Potlatch vs. Burk." the claimant, while operating a cut off saw on December 22, sustained an application of force directly to his abdominal wall when a board kicked back and struck him. He experienced severe pain, but after resting a few minutes continued to work until quitting time. He slept well that night but was bothered by pain the next morning and although suffering on December 23, he worked that day. The plant closed December 24 for Christmas holidays and the claimant was unsuccessful in his attern pt to contact a doctor on Decem ber 24. He again attempted to contact the doctor on Christmas day but without success. Being still unable to contact a doctor on December 26, he returned to work on December 27, but the pain was so severe by 9:3) a.m., he was forced to stop working. He was finally able to contact a doctor on December 28, at which time his hernia was diagnosed. The Commission denied the claim for compensation on the ground that claimant failed to see a physician within 48 hours, and the denial was affirmed by the Circuit Court and by the Supreme Court.

In the case of Prince Pou"ry CompanY'vs. Stephenl,'O the Supreme Court quoted from a Mississippi which stated " ...The statute does not require that the claimant prove he was actually attended by a physician or surgeon withing 5 days aHer the injury. The statute only requires that the claimant prove that the physical distress tollowing the descent of the hernia was such as to require the attendance of a physician or surgeon within 5 days. The word 'required' is defined in Webste~s N_ International Dictionary as meaning: 'To need; to be under a necessity; as, man required to feed or be fed; a fact requires to be stated.' The word is also defined as meaning: 'To demand or exact as necessary or appro-priate; hence to want; to need; call for.'

In this sense, we think, that the word was used in the above mentioned statute."

However, if the Prince Pou"ry Company case, supra, can be cited for standing for this proposition, it appears that the Supreme Court has reversed itself. In the case of Miller Milling Company vs.

Amyetl,12 the Supreme Court which had affirmed an award of compensation by the Commission, the Supreme Court saying: "The appellee's position really narrows down to the contention that since he suffered pain on March 6, his condition therefore 'required' the at-

tendance of a physician within 48 hours.

The fallacy in this argument lies in the disregard of the fact that severe pain must exist in every instance of a com路 pensable hernia, for that condition is the second of our five statutory requirements. Hence, if the appellee is right, the fiHh - that the attendance of a physician be required within 48 hours - adds nothing whatsoever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning in effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case."

It is submitted that the Prince Poultry CompaRy' case, supra, does not really stand for the proposition that the actual physical attendance of the physician within 72 hours (formerly 48 hours) is of no consequence. In the Prince Poultry Company case, supra, there were compelling reasons to excuse the delay in seeking medical attention. There the employer had demanded that the employee stay on the job and not go to the doctor as he was the only employee that had particular knowledge of a route, and the employer even went so far as to furnish a helper to assist the claimant until the helper could learn the route.

Likewise, the case of William. Manufacturing Company vs. Walker" excused lateness in reporting the injury to the employer. in the William. case, IUpr., the Commission denied the claim of the claimant for benefits. The Supreme Court affirmed the Circuit Court which had reversed the Commission, holding that the circumstances were such that the employer had constructive notice of the injury, thereby excusing strict compliance with the requirement of notice as "the delay was occasioned by a reasonable cause" The Prince Poultry case, .upr., stands for the proposition that a permissive waiver was, at one time, acceptable. The William. Manufacturing Company case, lupra, recogniZed excusable delay. However, the case of Harkleroad vs. Cottar" cut a clear path through the underbrush of prior inconsistencies. It stated, unequivocally, as follows: "It may be argued with considerable logic, that the specific statutory requirements as to proof of claims for hernia penalize the honest. in路 dustrious and concientious workman who fails or refuses to put down his tools immediately and rush to a doctor every路 time he feels pain following sudden effort or strain. The record before us in the case at bar indicates that appellee was just such a workman. It is a well recognized fact, however, that hernias may occur following anyone of the continued on page 108

HOW TO MAKE MONEY PRACTICING LAW

By Volney F. Morin A book first published in 1966, but this new Sixth Edition is as up-to-date as a new hairstyle. The price of $14.95 seems high, but every other page contains a nugget as to how to increase earnings from a law practice. The book is highly readable, practical, and is a great refresher course, from lvar Publications, P.O. Box 1855, Los Angeles, California

90028.

The author's main thrust - to have a zero accounts receivable balance by the use of deposit fees - is intriguing.

This "method" may not work in all situations, but any progress would result in a higher collection ratio for fees charged. The author points out that equipment for a modern secretary station will probably cost from $10,000 to $20,000, and payments must be met. He clearly explains practical methods of attracting legal business in an ethical manner, and, more important, how to keep clients after original engagement.

The sections on public relations cover involvement with client. staff and other attorneys. These sections shou Id be read and reread by every lawyer in pUblic or private practice.

Morin's statements are a unique blend of psychological principles and personal experience.

The author clearly has some tried and proven methods. The book will make you stop and reexamine your own methods of operation and unless you are a successful genius, you will find some ideas to adapt into your own system. The cost of the book can be earned from better relations with your next client.

July 1977/Arkansas Lawyerl107

Hernia. continued from paga 107 numerous strains and efforts the average active individual workman may encounter during the 128 hour rest week, as well as the 40 hour work week. It is a matter of common knowledge that witnesses do not see hernias sustained by a fellow workmen as they would see a broken arm or a broken leg. Consequently, the people have seen fit to make, and the Legislature has seen fit to leave, a compensable hernia a rather dramatic occurrence under the statute, with little or no room left for question or doubt, that it did occur within the course of employment as an immediate result of sudden effort, sever strain or force applied to fhe abdominal wall. The wording in the statute assumes the existence of a hernia. The statutory requirements of proof are directed at claim. lor ""rnla and not at the existence or occurrence of a hernia."

It has now been six years since the decision in the H.rlderoad case, supra. and it has been reaffirmed on many occasions, allhough the theory of sut>stantial compliance with the statute continues to be raised and continues to be rejected by the Supreme Court."

BENEFITS PAYABLE Section 13(e) provides that In cases of a hernia it is the duty of the employer to provide the necessary and proper medical, surgical and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith and, in addition, to pay compensation not exceeding a period of 26 weeks. No benefits are payable in excess of the 26 week maximum unless the claimant dies, in which case, if proven by competent evidence, his dependents would be entitled to death benefits. 16 Even though a claimant may be greatly disabled, even totally disabled, as a result of his hernia, he is entitled to no benefits beyond the 26 weeks. Indeed, a double hernia does not entitle him to double benefits. 17 CONCLUSION It is patently obvious that the special requirement to make a compensable hernia are in conflict with the liberal interpretation generally accorded an injured workman in a workmen's compensation proceeding. The problem is, however, not a judicial one but rather a legislative one. Our Court has simply construed the statute in accordance with its plain meaning. Nonetheless, it seems a rather diluted argument to say that a broken arm is readily discernable while a hernia is not. and consequently, a hernia is not compensable without the proof of the five requirements. It is pointed out that a herniated disc, like a hernia, is not apparent. Nonetheless, there are no lOB/Arkansas Lawyer/July 1977

special requirements to make a herniated disc a compensable injury.

Amendment 29 to the Constitution of the State of Arkansas, giving the General Assembly the power to enact workmen's compensation laws was submitted to the people by initiative petition.

It was adopted at the General Election held November 6, 1936.

The General Assembly adopted a workmen's compensation law by Act 319 of the Acts of 1939. Our present law, with certain amendments, is Act 4 of the Acts of 1949, which replaced the original workmen's compensation law. Since the original law, Section 13(e) has been essentially unchanged.

As the Legislature has not seen fit to amend Section 13(e) and as the Court is powerless to do so in the face of the clear meaning of the statute, it is apparent that future generations of work路 men's compensation hernia claimants will be burdened with meeting re路 quirements not associated with other inJuries.

FOOTNOTES 1. Ark. Stal Anno., Sec. 81.1313(e).

2. Larson. Workmen's Compensation Law, Sec. 39.70, p. 7-229 3. Larson, Workmen's Compensation Law, Sec.

39,70, p. 7-233 4. Lewis Carroll, Alice

In Wonderland.

S Bottoms Baptist Orphanage vs. Johnson. 240 Ark. 175. 398 SW2d 544 6 Loveless \IS. Garrison Furniture Company, 251 Ark. 776, 475 SW2d 158.

7 Art(. Slat. Anno., Sec. 13(e).

8. Haygood \IS. Tumer, 247 Ark. 724, 447 SW2d 316.

9. Potlatch \IS. Burks. 244 Ark. 714, 426 SW2d 819.

10. Prlnce Poulty Company \IS. Stephens, 235 Ark. 1034, 363 SW2d 929.

11. Lindsey \Is. Ingalls StllP Building Corporation, 219 Miss. 437, 68 SO.2d 872.

12. Miller Milling Company \1$. Amyeu, 240 Ark. 756.

402 SW2d 659.

13. Williams Manufacturing Co. \IS. Walker, 206 Ark. 392, 175 SW2d 380.

14. Harkleroad \'S. Colter, 248 Ark. 810, 454 SW2d 76.

15. Haygood \IS. Turner, 247 Ark. 724, 447 SW2d 316; King vs. Puryear Wood Products, 254 Ark. 452, 494 SW2d 123: Morgan \is. C & C Machine Shop, Inc., 256 Ark. 193, S06 SW2d 115.

16. Baker \is. S4laz, 205 Ark. 1069, 172 SW2d 419.

17. Jobe \IS. Capital Products Corporauon, 230 Ark.

Legal Economic., continued lrom page 100 Because these methods have been prearranged, you'll know that these messages are critical and that 1) above was not enough to take care of the emergency.

CuriOUSly, once the Client is assured that your office is willing to locate you even though you are out of town and perhaps on vacation, often the CPBS will decide for himself that the mailer isn't all that critical and will wait for your return.

If it IS critical, you've done the client a great service.

Often it is the same clients who go into a pale blue snit frequently. After these clients have been treated with the emergency procedures described above, they will remain calm during the mini and maxi..crises Nhich arise in your absence because they know your staff and are assured they're going to get the help they need when they need it. The result is that you'll have fewer interruptions during conferences; the interruptions which do occur are genuinely necessary.

These procedures, or those you decide to use in your office for handling visitors and calls, should be put in writing for reference. They should become a part of the office manuai and shown to new secretaries the first day on the job.

I hope these suggestions will help you and your staff in providing your expert services and advice to your clients, even clients in a pale blue snit, whether you're in or out of the office,

"",

'. 320 SW2d 634. ,'.

LAW BOOKS FOR SALE:

Arkansas Reports - Volumes 1 through 227, Arkansas Digest, and CJS. Price negotiable. Contact Ken Crow, 2200 Worthen Bank Building, Lit1le Rock, Arkansas 72201, Telephone No. 501-371-0006.

(EDITOR'S NOTE: Author Fran Shellanberger of legal EcOllomlca will be s leatured spasker at tha Nationsl Association 01 lagsl Assistants' 1977 Annual Workshop. July 16-19, Hota' Montelaona, New Orlaans. Sha will discuss tha use and dave/opmant 01 'aw aI/ice systams.

She ;s also a regular contributor to tha NAlS Docket (bimonthly publication 01 tha Association) as well as Lega' Economic.. the pUblication 01 tha Section 01 Economics of Law Practice of the American Bar Association.) :)

-,

CODE Of PROfESSIONAL RESPONSIBILITY

CANON 5

A Lawyer Should Exercise Independent Professional Judgment on Behalf of a Client

DISCIPLINARY RULES

OR

~101

RefuSing Employment When the Interests of the Lawyer May Impair His Independent Professional Judgment (A) Except with the consent of his Client alter full disclosure, a lawyer shall not accept employment if the exercise of his professional judgment on behalf of his client wilt be Of' reasonably may be affected by his own financial, business, property, or persooal Interests.

IS) A lawyer shall not accept employment in cootemplated or pending liligation il he knows or it IS vious thai he or a lawyer in his firm ought to be called as a witness, except thai he may under路 take the employment and he or a lawyer in his firm may testify: (1) lithe testimony will relate solely 10 an unco~ tested mailer.

(2) II the testimony will relate solely to a matter 01 formality and there is no reason to believe thai substantial evidence will be offered in opposition to the testimony.

(3) II the testimony will relate solely to the nature and value of legal services rendered in the case by the lawyer or hiS finn to the client (4) As to any matter, il refusal would wori< a su~ stantial hardship on the client because of the distinctive value of the lawyer or his firm as counsel in the particular case.

OR 5-102 Withdrawal as Counsel When the lawyer Becomes a Witness. <A) II, alter undertaking employment in contemplated Of pending litigation. a lawyer learns or it is obvioos that he or a lawyer in his finn ooght to be called as a WItness on behalf of hiS client. he shall withdraw Irom the conduct 01 the trial and his firm. if any, shall not continue representation In the uial, except that he may continue the representation and he or a lawyer in his finn may testify in the circumstances enumerated in DR 5101(B) (1) through (4).

(B) II, after undertaking employment in contemplated or pending litigation. a lawyer leams or it is obvj.. ous that he or a lawyer in his linn may be called as a witness other than on behalf of his ctlent, he may continue the representation until it is apparent that testimony is or may be prejudicial to his client.

*

DR 5-103 Avoiding Acquisition 01 Interest in litigation. <AI A lawyer shall not acquire a proprietary mterest in the cause of action or subject matter 01 litigation he is conducting for a client. except that he may: (1) Acquire a lien granted by taw to secure his lee or expenses.

(2) Contract with a client lor a reasonable contingent fee in a civil case.

(B) While representing a client in connection with contemplated or pending litigation. a lawyer shalt not advance or guarantee financial assistance to his client, except that a lawyer may advance or guarantee the expenses of litigation. including coun costs, expenses 01 investigalion. expenses of medical examination. and costs of obtaining and presenting evidence. provided the client remains ultimately liable for such expenses.

OR 5-104 Limiting Business Relations with a Client (A) A lawyer shall not enter into a business transaction WIth a client if they have differing interests therein and if the client expects the lawyer to exercise his professional judgment therein for the p'otection of the client. unless the chent has consented after lull disclosure.

(8) Prior to conclusion 01 alt aspects 01 the matter giving rise 10 his employment. a lawyer shall not enter into any arrangement or understanding with a Client or a prospective client by which he acquires an interest in publication rights with respect to the subject matter 01 his employment or proposed employment DR 5-105 Refusing to Accept or Continue Employment lithe Interests of Another Client May ImpaIr the Independent Prolessional Judgment 01 the lawyer.

(A) A lawyer shall decline proffered employment il the exercise of his independent prolessional Judgment in behalf 01 a chent will be or is likely to be adversely affected by the acceptance of lhe proffered employment. except to the extent permitted under DR 5-105(C).

(8) A lawyer shall not continue multiple employment If the exercise of his independent professional Judgment in behalf 01 a client will be or is likely to be adversely affected by his representation 01 another client. except 10 the extent permitted undo< DR S-'05(C).

(C) In the situations covered by DR 5-105 (A) and (8). a lawyer may represent mUltiple clients il it is o~ vioos that he can adequately represent the interesl of each and if each consents to the representation after lull disclosure 01 the possible el路 leet 01 such representation on the exercise of his independent professional Judgment on behalf of each.

(0) II a lawyer is required to decline employment or to withdraw Irom employment under OR 5-105. no partner or associate of his or his firm may accept or continue such employment DR 5-106 Selliing Similar Claims of Clients.

(A) A lawyer who represents two or more clients shall not make or participate in the making 01 an aggregate settlement 01 the claims of or against his chents. unless each client haS consented to the settlement alter being advised of the existence and nature of aU the claims involved in the proposed settlement. of the total amount of the settlement, and of the participation of each per. son 10 the settlement.

DR 5-107 Avoiding Influence by Others Than Ihe CIi路 enl.

(A) Except with the consent of his client after full disclosure. a lawyer shall not: (1) Accept compensation for his legal services Irom one other than his client.

(2) Accept from one other than his client any thing 01 value related to his representatton of Of his employment by his Client. tBl A lawyer shall not permit a person who recommends. employs. or pays him to render legal services lor another to direct or regulate his prolessionalludgment in rendering such legal services.

(C) A lawyer shall not practice with or in the form 01 a professional corporation or association authorized to practice law for a profit. if: (11 A non-lawyer owns any interest therein, except that a fiduciary representative of the es.tate 01 a lawyer may hold the stock or interest of the lawyer lor a reasonable time during administration; (2) A non-Iawyer is it corporate director or officer thereof; or (3) A non-lawyer has the right to direct or control the professional judgment of a lawyer. "":

,,

(EDITOR'S NOTE: Due to length, the ETHICAL CONSIOERATIONS for CANNON 5 hove not been reprinted hore. If the lewyor has...,y qu991lon ooncorning rasponslb/I/ty under CANON 5, the lewyor should reed the ETHICAL CONSIDERATIONS end NOTES thereto. The lewyor mey need to r&quest an ethics opinion f8 the problem 818S.)

July 1977/Arkansas Lawyer/109

Exploring the Boundaries of the Roe Doctrine: An Imaginary Supreme Court Opinion

by John Irvan Moritzky Choate "Exploring the Boundaries of the Roe Doctrine: An Imaginary Supreme Court Opinion." The article concerns the ramifications of the U.S. Supreme Court decision Roe v, Wade. The story is that an overcrowded bar association, brings a class action to permit the bar association to disqualify law students in their first year of law school from the expectation of admission to the bar and the practice of law upon graduation. The bar association recognizes that it is prac路 ticalty impossible to regulate the asso路 ciation membership by examination after graduation from an accredited law school. Consequently it seeks to disqualify a student during the first year of law school depending upon the economic health and legitimate interests of the bar association. The article discusses the right of privacy. the early common law concerning the disabilities upon law students, and other factors including the practice of the medical profession.

CASE - STATE OF TEACHERS The Bleck kre County Bar AsIOCla路 lion, Appeltant v. The University of Teecher. College of Law, Appellee, An overcrowded Bar Association (Black Acre) brought a class action challenging the constitutionality of the Teachers education laws, which proscribe procuring or attempting a disqualification of a law student's career except upon academic deficiency for the purpose of protecting the public, The Bar Association recognized that because of superior preparation, examinees did so well on bar examinations, that it was impossible to regulate the association membership by that

method. The bar association seeks to disqualify law students in their first year of law school from the expectation of admission to the bar and the practice of law upon graduation, depending on the economic health and legitimate interests of the association rather than academic deficiency.

A small bar association (White Acre), the county bar not being overcrowded, separately anacks the laws, basing alleged injury on the future possibility of failure of the bar examination to prevent overcrowding, unpreparedness for practice, and impairment of the members' economic heallh, A three judge District Court, for the Northern district of Teachers, which consolidated the actions, held that Black Acre and members of their class, had standing to sue and presented justiciable controversies, RUling that declaratory, though not injunctive, relief was warranted, the court declared the education statutes void as vague and overbroadly infringing those plaintiffs' Ninth and Fourteenth Amendment rights.

The court ruled the White Acres' complaint not justiciabie, Appellants directly appealed on the injunctive rulings, and appellee cross-appealed from the District Court's grant of declaratory relief to Black Acre, Held: 1. Black Acre has standing to sue; White Acre does not. (a) Contrary to appellee's contention, the naturat expansion of the Black Acre County Bar Association does not moot its suit. Litigation involving over population, which is "capable of repetition, yet evading review, is an exception to the usual rule that an actual controversy It

must exist at review stages and not simply when the action is initiated. (b) The White Acre's complaint, based as it is on contingencies, anyone or more of which may not occur, is too speculative to present an actual case or controversy.

2. State graduate education laws. like those involved here, that permit disqualification only by an academic procedure on the university's behalf without regard to the stage of the students' education and other interests involved violate the Due Process Clause of the Fourteenth Amendment, which protects against state action the right to privacy, including a bar association's Qualified right to terminate a law student's application for membership, Though the state cannot override that right. it has legitimate interests in protecting both the bar association's and the law school's, economic health and the potentiality of attorney practice, each of which interests grows and reaches a "compelling" point at various stages of the law student's approach to the bar examination. (a) For the stage prior to approximately the end of the first year of law school, the disqualification and its effectuation must be leh to the judgment of the bar association's board of directors. (b) For the slage sUbsequent to approximately the end of the first trimester (beginning with the second year of law school). the state, in promoting its interest in providing the public with legal representation and in the health of the law school, may. if it chooses, regulate the disqualification procedure in ways

The aufhor is particularly well~ualified to write this thoughtprovoking article, He is now an Assistant Professor of Law, The University of Tulsa College of Law, He served in 1973 as Executive Research and Legal Specialist for Associate Justice Leslie N, Jachimsen olthe Samoan High Court, He is Contributing Edi路 tor, The Samoan Pacific Law Journal; Chairman of the AALS Section on Taxation, His teaching specialties include contracts, eecurlty law and taxation. He is a member of many professional organizations,

110/Ar1<ansas LawyerlJuly 19n

that are reasonably related to academic performance.

(c) For the stage subsequent to graduation, the state, in promoting its in-

terest in the potentiality of legal membership, may if it chooses, regulate and even proscribe disqualification except where necessary, in appropirate legal

reasons in order to protect the general

public."

Black Acre Bar Association, the overcrowded bar association for Black Acre County. Teachers, instituted this action.

it sought a declaratory judgment that

judgement, for the preservation of the

the Teachers education statutes were unconstitutional on their face, and an injunction restraining the defendant from

economic health of the bar association.

enforcing the statutes. Black Acre alleg-

3. The state may define the term "at-

ed that it is a Bar Association and that it is overcrowded: that it wished to terminate future memberships by disqualifications "performed by a competent licensed attorney, under safe office conditions;" that it was unable to disqualify future members because the law

torney" to mean only an attorney curren-

tly licensed by the state, and may proscribe any disqualification by a person who is not an attorney as so defined.

4. It is unnecessary to decide the injunctive relief issue since the university authorities will doubtless fUlly recognize

the Court's ruling that the Teachers graduate education constitutional.

statutes are un-

Mr. Justice Blackacre delivered the OPINION of the Court.

We forthwith acknowledge our awareness of the sensitive and emotional nature of the education controversy, of the vigorous opposing views, even

among attorneys, and of the deep and seemingly absolute convictions that the

subject inspires.

One's

philosophy,

one's experiences, one's exposure to the raw edges of human existence, one's religious training, one's attitudes toward

teaching and the legal profession and their values, and the economic stan-

dards one establishes and seeks to observe, are all likely to influence and to color one's thinking and conclusions about this qualification.

In addition, population growth, pollution, poverty, selfishness and racial overtones tend to complicate and not to sim-

plify the problem.

Our task, of course, is to resolve the issue by constitutional measurement, free of emotion and of predilection. We

seek earnestly to do this, and because we do, we have inquired into, and in this opinion place some emphasis upon,

students did not appear to be SUbject to academic deficiencies; and that it could not otherwise restrict the production of law students and new attorneys. It claimed that the Teachers Statutes were unconstitutionally vague and that they

abridged their right of personal privacy, the right to own property, and the right to practice law, rights claimed to be guaranteed by the First, Fourth, Fifth, Ninth and Fourteenth Amendments.

dents' earnings are the property of the sponsor. This follows the rule that the attorney was entitled to his clerks ser路 vices.

We are also told, that disqualification is practiced in Great Britain through the Inns of Court, and that "it is resorted to without scruple." This of course, does not even include the restrictive membership practices of many unions, trade and labor associations, college fraternities, and the universities themselves when they screen their applicants. For many

years the South's slavery practices, which prevented classes of individuals from changing walks of life or entering into economic competition with the established members. It was necessary for

the welfare of the general public that broad disqualification was advisable.

Thus, most states and Bar Associations

afforded

little protection to the

law

students.

It perhaps is not generally appreciat路

Further drawing the analogy of ad-

ed, that the restrictive graduate educa路

tion laws in effect in a majority of states today are of relatively recent vintage.

mittance through the Bar Examination to the initiation into a college fraternity, it is undisputed that in college fraternities,

Those laws, generally preventing dis-

black balling of a "pledge," performed

qualification or its attempt at any time during law school except when

before initiation, is not impermissible.

Many factors have influenced the concepts of when law practice begins. Disciplines have variously approached the question in terms of the point at which the student became "formed" or recognizably professional, or in terms of when an "attorney" came into being, that is, infused with a "certificate."

II. The position ot the American Medical Association. The Medical profession is one of the most powerfUl organiza-

necessary to protect the public because of the students' academic deficiencies, are not of ancient or even of common law origin. Instead, they derive from statutory changes, effective, for the most

part, in the early part of the 20th Century.' Along with antitrust and anti路 slavery laws, they represented the higher morality of the Victorian era, even the progressive era in education of John

Dewey and the land grant colleges.

I. From early times, the common law imposed disabilities upon law students.

The point at which the disabilities came to an end originally varied for different

legal and economic history and what that history reveals about man's atti-

classes of attorneys, but gradually the

tudes towards the limitation procedure over the years. We bear in mind, too, Mr. Justice Holmes' admonition in his now-

came to be the standard. Apparently this

vindicated dissent: "(The Constitution) is made for people of fundamentally differ-

not do. Law students are SUbject to supervision, and even though they are liable for their mistakes, the supervisors are responsible for any malpractice or negligence. At common law, the law stu-

point of passing the Bar Examination was the point at which the law students

were thought to be educated enough to bear legal responsibility. Below that point, the class is referred to by the law

tions in the world. In the 1900's, there were many medical schools or diploma

mills, as many of them were called all over the country, in which doctors were turned out every two years. Many became professional in their own lives, in their experience of practicing. In our country there were 8 or more women's

medical colleges and 8 black medical colleges. What if the upper class decided that the medical profession was

Just for those in the upper class? The

ent views, and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying

quiring and owning law books. He may

them conflict with the Constitution of the United States."

not bind him since it is considered a part

to close rapidly. Today you cannot find a

of the legal education. A law student can

women's medical college. There are

work in the law office during summers or

only two black colleges left. There are 85 medicat schools to turn out the doctors

The Teachers Statutes that concern us here make It impossible to "obtain a disqualification," as therin defined, or to attempt one, except with respect to "a disqualification procured or attempted by legal advice for academ ic deficiency

as "law students."

The law student is capable of acread them or he may put them aside, but if he makes mistakes, the mistakes do

part time. Generally, law students do not qualify as legal counsel, since persons in those capacities often must make contracts and decisions which will be binding, something the law student can-

profession made that decision. Reports

came out funded by money from the Rockefeller Foundation and the Carnegie Foundation. The AMA withdrew accreditation and soon the schools began

we need in this country. There are 165 or more law schools to turn out the lawyers.

The cost of health care in this country is

continued on page 112 July 19n1Arkansas Lawyer!111

Doctrlrw, continued from page 111 skyrocketing and now almost out of sight.

Now it is $165 for your first day in the hospital, whereas, twenty years ago it was about $25 a day. But something else tells you about that. In the late 1920's and early 1930's the average doctors' take home was the same as the architect. engineer or master plumber. Beginning rapidly about 1927 with the reduction of the medical schools and the reduction of the number of students in the medical school classes, this figure rose to an average of about $41,000 a year and right now it is somewhere between $5O,CXXl and $6O,CXXl a year. It probably won't stop for the next 10 years.

The attractiveness of becoming a physician now has just about closed out all the things you used to talk to youngsters about. The elite profession, the ability to serve mankind, the look that your fellow man gives you when you

pass by, because you can make more money than anyone else in the world.

(Talk by Dr. James Stewart, at the Human Rights Series, The Professional Mystique, 1974).

III. The position of the American Bar Association. An ABA forecast report shows that starting this year there may be as many as 29,CXXJ graduates annually coming out of law schools, while the Department of Labor estimates that there will be only 14,500 jobS> waiting for them. (Trial Magazine, April, 1975, p. 11.)

A recent newspaper account stated "predicting a long term glut of college

graduates in the nations work force, the labor department said there may be more graduates than college level jobs in many fields between now and 1985....the study showed colleges and universities are over producing in many areas. .. .Colleges and universities output also appears extensive for chemists. food scientists, geologists, historians, lawyers, life scfentists, meterologists, oceanographers, physicists, political scientists, and teachers, the study in· dicated."

IV. The right of privacy is broad enough to encompass a bar association decision whether or not to terminate an applicant. The detriment that the state would impose upon the bar association by denying this choice altogether is apparent. Specific and direct harm economically diagnosable even in early law school may be involved. Law students may force upon the older lawyers a distressful life and future.

Psychological harm may be eminent.

Mental and physical health may be taxed by the additional competition. There is also the distress for all concerned, asso· ciated with the unwanted law student, and there is a problem of bringing a stu· 112/Arkansas Lawyer/July 1977

dent into a profession already unable, psychologically and otherwise to care for it. In other cases, the additional diffi· culties and continuing stigma of malpractice may be involved. All these are factors the Bar Association and their representatives necessarily will consider in the consultation.

We, therefore, conclude that the right of personal privacy includes the disqualification decision, but that this right is not unqualified and must be con· sidered against important state interests in regulation. When Teachers urges that a law student is entitled to Fourteenth Amendment protection as an "attorney" it faces a dilemma. Neither in Teachers nor any other state are all disqualifica· tions prohibited. Despite broad proscription, an exception always exists.

The exception contained in the Teachers' statute concerns academic deficiency. But a real attorney may not be "flunked out:' and therefore, if these things were attorneys, they could not be failed. This inconsistency undermines the logic of their position.

V. In view of all of this, we do not agree that, by adopting one theory of education, Teachers may override the rights of the overcrowded bar associa· tion that are at stake.3 We repeat, however, that the state does have an im· portant and legitimate interest in preserving and protecting bar associations, and that it has still another important and legitimate interest in protecting the potentiality of legal practice. These interests are separate and distinct. Each grows in SUbstantiality as the law stu· dent approaches the bar examination and, at a point during law school, each becomes "compelling."

With respect to the State's important and legitimate interests in potential legal practice, the "compelling" point is at viability. This is so because the law student then presumably has the capability of meaningfUl practice outside the law school. State regulation protective of a law student after viability thus has both logical and economic justifications. The law student has a substantial investment in tuition and time in a legal career. If the state is interested in protecting law students after viability, it may go so far as to proscribe disqualification during that period, except when it is required for academic deficiencies. Measured against these standards, the law, in restricting disqualification of bar applicants to those with academic deficiencies, sweeps too broadly. The statute, therefore, cannot survive the constitutional attack made upon it here.

This conclusion makes it unnecessary for us to consider the challenge on grounds of vagueness.

Disposition shall be in accordance with this opinion. It is so ordered.

Footnotes: 'The anti-disqualification mood prevalent in this country in the late Nineteenth century was shared by the medical and legal professions. However, the House of Delegates of both organizations have recently passed resolutions changing official positions concerning this issue. In 1970, a reference committee of the AMA House of Delegates, noted "the remarkable shift in testimony" in six months, felt to be in· fluenced "by the rapid changes in state laws and by judicial decisions which tend to make disqualification more freely available;" and a feeling "that this trend will continue." This court states emphatically that the trend will continue, in which cases will be handed down, providing the basis for the AMA to modify their statement of ethics, providing further justification in later cases for the courts to hand down even stronger decisions, providing the basis for further modification, providing further justification, and so on. See 410 U.S. 143.

That this procedure is successful is demonstrated by the similar development in the ABA House of Delegates. In drafting the Uniform Disqualification Act, the Conference of Commissioners on Uniform State Laws, states "Recognition was given also to the several decisions in state and federal courts which show a further trend toward liberalization of disqualification laws, especially during the first trimester of law schooL" See 410 U.S. 147, n. 41.

We are pleased to take advantage of these good faith efforts to conform to our policies, in that they may then be cited as providing the ground swell of opinion to support our ratio decidendi. It will then seem that the court is taking the reasonable posture of simply and humbly acknowledging the prevalent attitude of our society. This, of course, removes the court from any controversy or attack, even though we are striking down laws that have been passed in every state of the union. See 410 U.S. 118, n. 2. The fact that a majority of the States reflecting, after all, the majroity sentiment in those States have had restrictions on disqualifications tor at least a century is not a strong enough indication, to dissuade us, that the asserted right to disqualification is "so rooted in the tradi· tions and conscience of our people as to be ranked as fundamental." See 410 U.S. 174.

2The Court chooses to disregard contrary information. The Law School Admission Counci I claims "The most recent projection, contained in BLS (Bureau of Labor Statistics) BUlletin 1918 published earlier this year, projected 26,400 new positions annually over the period (1976) until 1985. This represen-

ted a revision upward of 60 percent In three years.

Many news articles,

however, continue to publicize the oul-

of-date projections." 9 Prelaw Newsletter No.2, Dec. 1976. Any organization with a sixty percent range in forecast is demonstrably unstable. We need not resolve the dlNicult question of how many jobs will exist. When those trained in the respective disciplines of labor, statistics, and admissions are unable to arrive at any consensus, the jUdiciary, at this point in the development of man's knowledge, is not in a position to speculate as to the answer. 410 U.S. 159.

3Naturally, with a complete reversal of

MEMORIAL GIFTS "It is more blessed to give than to receive"-However, a member profits both way. with a memorial gift to the Arkansas Bar Foundation. One's gift is a bPautiful way of honoring a former colleague, The family must be most appreciative of such remembrance. The gift is n"ted in the Foundation's Memorial Book and, of course, is tax deductible. Memorial gifts may be sent to the Arkansas Bar Center. The memorial cards (below) of the Arkansas Bar Foundation are formal and are promptly delivered upon receipt of the memorial gift.

law, the court is unable to cite any precedent to substantiate its position.

However, the court is pleased to quote from numerous works based upon the philosophies of men and cite numerous cases of our predecessors on various

irrelevant topics. "The Constitution does not explicitly mention any right of privacy." 410 U.S. 152. We are grateful for this situation, in that it has permitted

WE ACKNOWLEDGE WITH GRATEFUL APPRECIATION THE RECEIPT OF A GENEROUS MEMORIAL GIFT FROM

us to breathe life and vigor into an idea

without being hindered by legislative restrictions, Imprimatur. ~19n

JIMC

:1_.....

OF

IN MEMORV OF THE LATE

THE LITTLE ROCK, ARKANSAS

EDWARD L. WRIGHT SCHOLARSHIP FUND The law firm of McMath, Leatherman & Woods, PA 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.

DATE WE ACKNOWLEDGE YOUR GENEROUS MEMORIAL GIFT IN THE AMOUNT

OF

_

IN MEMORY OF THE LATE

THE FAMILY Is BEING NOTIFIED

LITTLE ROCK. ARKANSAS

July 19nIArkansas Lawyer/113

LAW SCHOOL NEWS Assistant Dean James K. Miller Associate Dean David R. Hendrick

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS, FAYETIEVILLE A seminar on Trial Tactics was held at Fayetteville on April 8. Speakers included Jack Lessenberry, Michael Easley, Bill Putman, Henry Woods, Alston Jennings, Sr., Bill Wilson, Jack HOlt, Jr., and Dr. Emry Vorhely. The seminar, held in conjunction with Law Week, was attended by 3J() attorneys and students. The program, sponsored by the Student Judicial seminar series, was made possible by grants from the Arkansas and American Bar Associa路

tions.

The second annual symposium on the Black Attorney in ArKansas was presented on April 9 by the Law School Chapter of the Black American Law Students Association. Speakers and panelists included Dr. Charles Bishop, Kenneth Harris, George Knox, Chris Mercer, John Kearney, Harold Flowers, Vashti Varnardo, Les Hollingworth, Bill Clinton and Professors Robert Lellar, Milt Copeland, and Charles Sullivan of the Law School faculty.

Other Law Week speakers included senator Dale Bumpers, and George Fisher, of the Arkansas Gazette. Dean Wylie Davis delivered a Law Day speech on "The Meaning of May Day" to prelaw students and others at UAPB on May 2.

Ms. Ruth Grisso, secretary to the Dean and a friend to all law students for the past 20 years, will retire at the end of June. She was honored at the Law Week banquet for her outstanding service to Law School and was presented a gift on behalf of the faculty and students. Several students and attorneys have expressed an interest in establishing an annual scholarship in her name. If you wish to donate to the fund, please make checks payable to the U of A Foundation

and address them in care of David Malone, Assistant Dean, U of A School of Law, Fayetteville. Interest earned on the donations will be designated to provide an annual tuition scholarship for a deserving student at the School of Law, Fayetteville. Malone advises that "Ruth does not know of the solicitation and we hope to surprise her on her retirement."

Dr. Robert A. Lellar led a discussion on the internal operating procedures of appellate courts at a Wisconsin judicial Conference on April 22 and 23. He gave two lectures on current developments in Tort law at the Maryland Judicial Conference at Baltimore on April 28 and 29.

He also lectured at the South Carolina Judicial Conference on May 19 and 20.

He will, for the 22nd year, help conduct the Appellate Judges Seminars at the New YorK University School of Law in June and July.

On April 30, Professors Robert Sterling and Milt Copeland attended a meeting in Tahlequah, Oklahoma, consisting of approximately 40 members of the faculties of the three law schools in Oklahoma.

Professor Copeland participated on a panel which discussed "The Problem of Maintaining Standards: Grading Practices and Policies."

Student Bar Association Officers for the summer and fall semesters of 19n are John Johnson of Russeltville, President; Toni Nolan of Fort Smith, First Vice President; Lee Hinson of West Memphis, second Vice President; Nancy Gregg of Tampa, Florida, Treasurer; Marilyn Brown of Jonesboro, Secretary; Greg Stidham of Checotah, Oklahoma, A.S. G. Senator; Boone Nance of West Memphis, 2nd Year Representative; Steve Bell of Batesville, 3rd Year Representative and Ed Tarvin of Little Rock, Faculty

Representative.

The Legal services Corporation has approved a grant to Northwest ArKansas Legal Services, Inc. The corporation is expected to be operational by July and will work in conjunction with existing clinical programs at the Law School.

Professor William Lancaster will be discussion leader of "The Law and International Business" seminar scheduled for May 20 in Little Rock.

Professor Ray Guzman recently presented programs on criminal law legislation, proposed and enacted in Arkansas in 1977, to the Sebastian and Benton County Bar Associations. Professor Guzman is also an administrator of this summer's Criminal Law Internship Program.

Twenty students are expected to intern in offices of prosecuting attorneys and public defenders throughout the state.

An article by Professor Charles Sullivan, entitled "The Enforcement of Title VII: Meshing Public and Private Effort," was recently published in Northwestern University Law Review. A version of the article will appear in a forthcoming book written by Professor Sullivan and Professor Richard Richards of the University of ArKansas, and Professor Michael Zimmer of Wayne State University. The book is scheduled for publication by Bobbs-Merrill in 1978.

Law Review officers for Fall, 1977, are David Knight of North Little Rock, Editorin-Chief; Bill Hill of Eureka Springs, Managing Editor; Roy Stanley of Ripley, Tennessee, Comments Editor; Bill Bonilla of Springdale, Articles Editor; Bill Olah of Terre Haute, Indiana, Citations Editor; Ginger Parker of San Antonio, Texas, Research Editor, and Don McSpadden of Batesville, Business Manager.

SCHOOL OF LAW, UNIVERSITY OF ARKANSAS AT LITTLE ROCK FRED HARRIS JOINS FACULTY O. Fred Harris Jr., 29, a native of Camden and former captain in the Army Judge Advocate General Corps, has been appointed an assistant professor of 114/ArKansas Lawyer/July 1977

law at the University of Arkansas at Little Rock School of Law. Professor Harris will begin his teaching duties May 23, with the start of classes for the summer term. He will teach the course in Employment Discrimination this summer.

Professor Harris received a bachelor's degree in political science from the University of Arkansas at Fayetteville in 1970 and a law degree from the UAF in 1973. While in law school he served on the staff of the Arkansas Law Review.

be held at the Notre Dame Schooi of Law later this month. Other law schools com-

peting

Harri.

in

the Regional Competition

were: Louisiana State University, University of Miami, Nova University of Florida, Saint Mary's University of Texas, Stetson University of Florida, University of Texas, and Tulane University.

The Client Counselling Competition is sponsored by the American Bar Association Law Student Division. In the competition the law students interview a client in a simulated law office setting. Practicing attorneys observe the interview and

La Hale

judge Ihe competition by comparing Ihe interviewing and counselling skills of the various teams competing.

This is the Ihird year the UALR School of Law has been involved in the compe-

tition. Mr. Muldrow and Ms. Vowell are both from Little Rock.

Clinton

FACULTY NEWS

Quiggle

Dean Robert K. Walsh has continued his schedule of speeches to local and regional bar associations through recent appearances before the Independence

Mr. Harris attended the University on a four-year National Achievement Scholar~

ship awarded by the National Merit SCholarship Foundation to outstanding black students, and a three-year Herbert Lehman Legal Education Scholarship funded by the NAACP. He served summer internships with the Pulaski County

Legal Aid Bureau in 1971 and Pulaski County prosecuting attorney's office in

1972.

From October 1973 to January 19n, Mr. Harris was a lawyer with the rank of

captain in the Anmy Judge Advocate General Corps. He was stationed at Stuttgart, Germany, serving primarily as a criminal defense counsel for Army personnel and as a legal assistance officer and an assistant claims officer. He was

detailed Academy

to the West Point Military last

summer

to

represent

cadets involved in the cheating scandal.

Professor Harris has been in private

practice at Little Rock since January. He is married to the former Vulonda Black of Lewisville and Little Rock. They have two children. He is the son of Fred Harris of Camden and the late Eleanor Harris.

UALR TEAM PLACES SECOND

The UALR School of Law Client Counselling

Competition

team

of

Lee

Muldrow and Marsha Vowell placed second out of nine other law school

Brunson recently attended the joint Pacific and Southwestern Chapters Conference of the Association of American Law Libraries.

SBA LAW DAY PROJECT

The Student Bar Association has prepared a pamphlet, "What Vou Should Know About Traffic Court (Before Vou Go In)," which was designed to let persons know what to expect and how to

conduct themselves if they decide to challenge a traffic ticket.

The project was financed by $300 from the Student Bar Association and a $300 matching grant from the Law School Services Fund of the American Bar Association's Law Student Division. A total of 2,500 copies were printed.

Copies may be obtained from the UALRPualski County Law Library at the Arkansas Law Center at 400 West Markham Street, and will be available at other locations later.

Vic Fleming, a Law School student and a research assistant in the North Ut-

County Bar Association (Bafesville) and the 5th Chancery Circuit Courtroom

tie Rock city attorney's office, wrote the

Dedication at Helena. Associate Prafessor Glenn E. Paavogel, Jr., attended a regional conference on juvenile code revision in New Orleans on May 8-10.

The conference was sponsored by the

seven law students, Miss Terry Clayton, Jim Cullum, Miss Caran Curry, Ted Holder, Bob Jones, Mrs. Judy Kay Mason and Pepper Paulson.

Federal Regional Vouth Development Task Force. Associate Dean Devld R. Hendrick, Jr., attended the annual meeting of the American Law Institute at

Washington, D.C., in mid-May. Associate Professor Kenneth S. Gould attended the regional Client Counselling Competition (see reiated story) as faCUlty sponsor. Professor Gould also attended a Legal Education and Aging Conference sponsored by George Washington University at Washington,

D.C., on March 11-12. Frederic K. Spies, Professor of Law and Legal Medicine, has been appointed to the accrediting committee of The American Academy of Forensic Sciences. On May 13.

Professor Spies spoke on "Needed Legislation" to the annual meeting of the

Community Mental Health Association.

The association met at Little Rock. Mr. Spies also directed a seminar concerning the legal problems in nursing at

the Phillips County Community College, Helena, on May 23-24. Mr. Spies, who holds a joint appointment with the UALR SChool of Law and the College of Medicine, University of Arkansas for Medical Sciences, is currently planning a new

teams competing in the Regional Client Counselling Competition held on March 5 at the Tulane University School of Law in New Orleans. The Texas Tech University School of Law team placed first in

course in Law and Psychiatry to be of-

the competition, winning the right to compete in the National Competition to

Michigan State University on May 23.

Professor and Library Director Ruth

fered next year to senior law students

and psychiatry residents. Professor Fred W, Peel, Jr., was a guest speaker at the Tax

Executives

Institute

held

at

pamphlet with research assistance from

LAW DAY AWARDS

Henry LaHaie and Mrs. Annabelle Clinton, seniors at the University of Ar-

kansas at Little Rock School of Law, have been named co-recipients Satur-

day of the John H. Brunson Memorial Award for distinguished service on the

Little Rock staff of the Arkansas Law Re-

view. The award is the highest given to a UALR law review student and the recipient's name is engraved on a plaque, which hangs in the UALR-Pulaski County Law Library.

Mr. LaHaie and Mrs. Clinton, both of Little Rock, were Little Rock Comments Editors of the Law Review last fall and this spring, respectively. Mrs. Clinton has been employed by the Wright, lindsey and Jennings law finm of Little Rock and Mr. LaHaie has been employed by Judge Terry Shell, federal district judge for the eastern district of Arkansas.

Other awards announced at the an-

nual UALR Law Day Awards Dinner at the Capitol Club included: Richard Quiggle, the $150 Bogle-Sharp Award presented to the graduating senior chosen by vote of their classmates as

the most likely to succeed in law practice; Mrs. Alice Ann Burns Krupicki, best Law Review comment by a Little Rock staff member, and Mike Millar, best Law Review case note by a Little Rock staff member. Each of the winners is from Ut-

tie Rock.

J-_

July 19n/Arkansas Lawyer/115

In jHtmortam o Lord. our Lord, haw mBjestlc is thy name in all the earthl Psal",. 8:1

BURL THURSTON JACKSON Burl T. Jackson, 69, of Little Rock. a lawyer and CPA, died November 19, 1976.

He was a deacon of the Immanuel Baptist Church and a member of the Kiwanis Club. He was a member of the Arl<ansas Bar Association, since his admissIon to practice law in 1941.

SUrvIVOrs are his wife, Mrs. Lelia Margaret Gordon Jackson and a brother, John T. Jackson of Waldo.

JOHN M. ROSE John M. Rose, 85, grandson of the late Judge U. M. Rose, died April 5.

19n at Little Rock.

He began his law practice in 1919 at Little Rock and in 1933 worked in the legal department of the Federal Land Bank in Sl Louis. In 1942. he returned to Little Rock to continue his law practice until his retirement in 1955.

He served as an Army lieutenant in WWI. He was a member of the Ar-

1111Arkan_ Lawyer/July fBn

kansas Bar Association and American Legion. He was a Presbyterian.

Survivors include several nieces and nephews.

RANDAll CARL JARMAN Randall C. Jarman, 27, city attorney for Berryville and Green Forest, died April 27, 1977.

He graduated from the University of Arkansas SChool of Law at Fayetteville in 1975. He was a member of Delta Theta Phi, the Berryville Jaycees and Rotary Clubs, the Arkansas and American Bar Associations.

Survivors are a brother, Richard C. Jarman of Virginia; a half-brother.

James Kelly Jarman of Kentucky; and his grandfather, Carl R. Johnson of California

ORYLLE D. PENDERGRASS O. O. Pendergrass. 66, of Mountain Home. a former state representative, died April 19. 19n.

He received his law degree from LaSalle Extension University, Chicago, Illinois in 1935. He taught school in Southern Mississippi and In Fulton County. Mr. Pendergrass was an active member of the County Republican Committee. He was a past president of the Mountain Home Lions Club; past president of the Baxter-Marion Counties Bar Association and a member of the Arl<ansas Bar Association SInce 1962. He was a former deputy prosecutor for Baxter County and a past chairman of the state Farm Bureau Board. He was a member of the First United Methodist Church and a past chairman of its administratNe board.

Survivors are his wife. Dorothy Huse Pendergrass; two sons, Max Pendergrass of Oregon and Leon Pendergrass of Missouri; two dBughters, Mrs. Louise Reynolds of Rogers and Mrs. Jane Clawson of Russellville; six brothers; two sisters; and seven gl8lldchildren.

"POUND" REVISITED -Griffin B. Bell

I appreciate the opportunity to be with you tonight to discuss our concerns over the shortcomings ot the Nation's justice system. The shortcomings have long been evident.

More than 70 years ago, Roscoe Pound .ald: "Our admlnl.tratlon of ju.tlce I. not decadent. It Iâ&#x20AC;˘â&#x20AC;˘Imply behind the time....

In 1930, a Presidential commission reported in disturbing detail the Nation's inept response to crime in America.

Another Presidential commission reported the same in more dramatic dimensions a decade ago. Last year, a National Conference on the Causes of PopUlar Dissatisfaction with the Administration of Justice was held. The conference's title came from Pound's lecture of 70 years earlier.

As the old French saying goes, the more things change the more they seem the same. Seven decades after the Pound lecture, we are still struggling to devise a justice system capable of meeting the demands of the times.

Nevertheless, we should not be discouraged. We do not have to flounder helplessly with the status quo.

One of the most articulate, determined, and effective advocates of the proposition that meaningful improvements can be fashioned is your Senator John L. McClellan. He has worked tirelessly over the years to develop some of the most important criminal justice legislation in the Nation's history.

In 1968, Senator McClellan was the leading floor spokesman for the Omnibus Crime Control and Safe Streets

Act. Two years later, he was the moving force in enactment of the Organized Crime Control Act. Both of these statutes have unusual qualities. They enable much more effective efforts against crime while, at the same time, erecting better safeguards for individual liberties.

In recent years. Senator McClellan has been deeply involved in an even more ambitious project.

It Involve. the first complete revl.lon of the Federal criminal code.

The criminal code has grown in a jumbled fashion for 200 years. Many observers feel that the current effort to revise the code is the most significant and comprehensive legislative undertaking in the history of our criminal law. The project has not been without controversy. An earlier code proposal, known as Senate Bill 1, prompted a lively debate over several issues. Senator McClellan SUbsequently took the lead in redrafting the proposed new code. The few controversial items were severed from it, to be considered individually later if Congress so desires.

As a result, a landmark piece of legislation was introduced earlier this week by Senator McClellan. It has received widespread support, including that of Senator Kennedy and Chairman Rodino of the House Judiciary Committee, both of whom joined in introducing it.

After I became Attorney General, I set up a Justice Department task force to study the entire matter. I decided to support code revision, minus the few contro-

verslal items. We were able to make what I hope were helpful contributions to senator McClellan's efforts. But major credit for the leg islation belongs to Senator McClellan. He steadfastly supported the effort when, at times, it seemed certain to be abandoned. He deserves the Nation's gratitude. Senator McClellan's determination to improve the criminal justice system sets a standard for us all.

We must match his dedication. For to fashion other needed improvements, there must be far more resolve by the general pUblic, by civic groups, by the organized bar, by state and local government, and by agencies of the criminal justice system. The Federal government also must do more.

Mo.t law enforcement respon.lbilitle. and resource., we mu.t remember, are at the state and local level.

The Federal Bureau of Investigation has 8.500 agents. But New York City alone has 25,500 policemen. There are 1,700 lawyers in the 94 offices of the U.S. Attorneys. By comparison, there are 2,100 local and state prosecutors in California alone.

But if the Federal role is limited, it is vital. I would like to describe some of the steps being taken or considered at the Department of Justice to reduce crime and improve the justice system. We must develop a program for the national delivery of justice, both civil and criminal, at all levels. To do this, we have begun an extensive reorganization continued on paga 118

The Honorabla Griffin B. Bell, Attorney General of the United States, was the guest of the Pulaski County Bar Association on May

4, 1977 at a reception at the Arkansas Law Center and a dinner at the Camelot Inn, Uttle Rock. Respondents to a recent U.S. News end World Repotf survey named Bell as the second most Influential man In America In the field of law (Bell was preceded onty by Chief Justice Warren Burger). We are publishing here his address before the Pulaski County Bar Association. Reading the speech gives one complete credence In the survey.

July 1977/Arl<ansas Lawyer/117

------------~ Pound, continued from page 117 of the Justice Department and have instituted new programs.

Management systems have been unwieldy in the past. To streamline operations, we now have, in eHect, two Deputy Attorneys General instead of one. This will result in much closer supervision of the Department's work.

The Deputy Attorney General will supervise the crime-related activities, the Department's Criminal Division, the Federal Bureau of Investigation, the Drug Enforcement Administration, the Bureau of Prisons, and the Law Enforcement Assistance Administration, as well as the 94 U. S. Attorneys.

The Associate Attorney General, occupying a parallel position, will supervise most civil work. This will include the other five litigating divisions - Civil, Antitrust, Civil Rights, Tax. and Landsplus the Immigration and Naturalization Service and the Community Relations Service. We expect that the Associate AMorney General's post ultimately will be converted into a second Deputy Attorney General under the President's reorganization plan.

The final responsibility for all policy and program matters will, of course, still rest with me. In addition, several key offices, inclUding the Solicitor General, will report directly to me.

The catalyst for many new programs will be the Office for Improvements in the Administration of Justice, which was created last January.

We have already developed a longneeded new program for commission selection of Federal circuit jUdges.

Similar procedures for district judges have been agreed to by senators in about 10 states, and I hope we will establish similar procedures for commission selection in many more states during the next two years.

I recently testified in support of increasing the number of Federal jUdges.

New cases filed in district courts increased from 92,000 in 1950 to nearly 172.000 last year. Circuit court filings have more than doubled in the past decade.

Appropriate ways also must be found to improve procedures and reduce caseloads - while, at the same time, preserving access to the courts for those matters that only the courts can properly handle.

We are developing a proposal to expand duties of U. S. Magistrates. The 118/Arkansas LawyerlJuly 1977

Magistrates would assume a heavier criminal jurisdiction, as well as a broader civil role. Caseloads for U. S. District judges would drop substantially.

Costs and delays prevent reliance upon the courts for many Americans.

These problems must be remedied; lack of access to meaningful court action can deny justice as surely as bad court decisions. We are now developing alternatives to the courts for settlement of many disputes.

One promising concept at the local level is the Neighborhood Justice Center. These centers would employ such techniques as mediation and conciliation. We plan to develop these centers in several localities on a pilot basis, under local court administration.

We are working to improve procedures for class actions and complex litigations. We are also fashioning proposals to simplify the discovery process, which is now so often an ordeal. I hope legislation and rule changes will eventually be adopted in these areas.

In criminal enforcement, the problems are enonnous.

Serious reported crime grew 232 per cent between 1960 and 1975. Though most anti-crime responsibilities rest with state and local governments, local crime in the aggregate has become a national problem. Preliminary figures released recently show that serious reported crime did not increase in 1976 compared to 1975.

Nevertheless, crime is still far too prevalent. The Federal government must do everything it can to help. The Justice Department needs to cooperate more closely with states and localities in investigating and prosecuting crimes. All can benefit from such cooperation. As previously mentioned, resources are far greater at the local level.

At the same time, some enforcement responsibilities must clearly rest with the Federal government. This is true of interstate offenses and large-scale conspiracies that reach beyond local jurisdictions.

The Department has four major priorities in the criminal enforcement field so-called white-collar crime, public corruption, organized crime, and nar路 cotics - and all are related.

Narcotics and dangerous drugs are associated with a variety of serious crimes. To develop a more effective approach, we are making a detailed study of the possibility of converting the Drug Enforcement Administration into a division of the FBI. We will assess what the FBI could accomplish if its expertise and

resources were thrown into the Federal campaign against drugs.

Organized crime obtains vast amounts of money from gambling, loansharking. thefts, and similar activities. It is up to state and local government to deal with most types of crime. But when those crimes become organized and reach across state lines, it Is time for the Federal government to step in vigorously.

Most public officials at all levels are honest, but some are not. Those who are not must be found, prosecuted, and sent to prison. Nothing so debases our system of law as the corruption of those sworn to uphold it.

New tools will be fashioned to combat white-collar crimes. One serious aspect of white-.collar crime is fraud against the government, including the Medicare and Medicaid programs. But fraud is really too nice a term. It is theft of government funds, and that really means stealing from the public.

I have directed the FBI to continue to refine its investigative priorities so that far more attention is given to white-collar crime. More accountants, computer experts, and other specialists will be recruited and trained. They are needed to unravel the complex schemes carried out through use of computers, modern technology, and elaborate financial structures.

There is not one crime problem standing alone in the Nation today.

There is a host of problems. Nevertheless. I believe that progress is possible.

We are going to attack problems instead of studying them to death. To succeed. we need the help of responsible citizens everywhere.

I had the great honor earlier this week to take part in a news conference with Senator McClellan in Washington when the criminal code revision legislation was introduced. Along with other Congressional leaders, Senator McClellan explained some of the bill's key provisions and gave 8 much-needed insight into the need for it.

The Nation cannot begin to make meaningfUl progress against crime if its basic tools - the laws - are antiquated.

And progress is undermined if those statutes do not fully protect basic rights.

The criminal code revision designed by Sonator McClellan fills both needs.

It is the premier achievement of a remarkable career of public service and a historic moment in this Nation's continuing effort to bring order to its system of criminal justice. !}

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Editor's Comment: AEGIS Is e "'ature of the Arkansas 8ar Association's educational program concerning docket control and other areas of high risk experience In professional liability cases.

SAFEGUARDING YOUR PROFESSIONAL FUTURE

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OH WHAT ATANGLED WEB WE WEAVE. WHEN FIRST WE PRACTICE TO DECEIVE. It's no secret that the field of law is extremely involved and complex. Yet some lawyers find it most difficult to say to a client ... "this is not one of my specialties" .

If you accept a case that involves an area in which you are not thoroughly familiar, refer it to someone who has experience in that particular field. Your expertise in certain areas doesn't extend to all

areas. Don't be a victim of the old "Jack of all trades, master of none" adage ... you're likely to be sued if you make any mistakes.

Certain areas of law, just like other professions require specialists. If you accept cases in areas where you have relatively little experience, you're only weaving your own web!

July 1977/Arkansas Lawyerl119

It's Open Season On La ers!

In fact, there's no teUingwhen you'll be hit with a lawsuit by a dissatisfied client.

Even the most competent allorney cannot always avoid a suit, and often the wealthiest attorney cannot afford one. Right or wrong, the number of claims is growing and the total dolJat, amount paid out in settlements is gmwing even faster. But we can help.

CNA atld the Arkansas Bat' Association have worked together to come up with a comprehensive program of professional liability insurance for its members that can help protect both your financial and professional future. First, it helps to mininlize the causes of liability suits through loss prevention programs. Then, it provides financial protection to help guard you against professional and business liability with a maximum 01'$100,000 per claim ($300,000 annually) after a deductible.

Think you need mot'e?Supplemental pmtection 01'$1,000,000 for business and professional coverage atld $1,000,000 fot, personalliability is also available.

Any case you handle could leave you wide open to a lawsuit. So, let yow' Arkansas Bat' Association sponsored Comprehensive Lawyers 120/Arkansas Lawyer/July 19n

Professional and Business Liability Platl help pmtectyou from financial danger. To find out all tlle important details, including the exclusions, any reductions or limitations and the terms under which the policy may be continued in force, send the coupon below to the administrator: Rather, Beyel' &- Harper; Three Hundred Spring Building; Little Rock, 72201.

Ol'call (501)372-4117.

,---------------------1 I I I I I I

PICilM! ~cl1d nH~ infCII'l1liltion for Ihl~ ArlwllS<l.!t Bar' As~ocia足 lioll spnn~ol1~d 1..il\\ycl'!'o Pl'Ofessional and BlISil1cs~ Liahility In~llrillll'C. Scm-I

10:

,\rkilJlsa:-. Bill' A...sodulion Adminil'oll'ator Bather-, Beyer &. Harper Thl"c(! I lunch-cd Spl"ing Building

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Major Legislation of Interest to Lawyers 95th Congress, First Session (As of April DILL DESCRIPTION Additional Judf"htps. (S II, With amendments; HR 3685) Crnt. 107 dlslrlct Judgntllps, 2S ClfCUllludgtstups.

Adminlstfilwi Procedure Act Amendn'llnts. (6 86, 6 316; HR 3561·3565) P,oPoSiIs to improve administrativt protedum.

Award of Auarneys' Fees. IS 270; HR 3361) Permit fWlrds 01 tnorneys' In, in f.derW Idministrativ. and judiciI! miew proceedings.

HOUSE STATUS

SENATE STATUS

ABA POSITION

Judiciary subcommittH

Judiciary Comminn bllpn h.-invs

Supports additional Judgeships

began hArlngs 3/1onl

Pending in

Supports administrative

subcommiun

Judiciary subcommittn

proem improvements

Judiciary subcommittee began h••rif\9S

3130m

~1Nr1cup

312.m

ruptcV·

2mm

Pending in Judiciary

Judkilry subcommittee Bankruptcy L. . Rrio,,,,. (HR 61 Estllblish • uniform law of bank-

1, 1977)

Judiciary subcommiU" tompl,tld hllring.

Supports

2111m

No bills introduced

Supports .".,.1 principiIS for bankruptcy ~form

ConWmlfs. (HR 7021 Eslablish independent office of consumer protlction; (S 957; HR 2482) Establish program 10 provide linant~1 pstan':e to slltl egencits to improve Sl'OIli claims courts and other minor dispute m.chenisms.

HR 702 pending in Govern· mint Opel'1tion~ subcom· mitt"; HR 2482 pending in Commerce subcommittH

Pending in Commerce subcommittn

Supports independent agency; no position on HR 2482. S 957

Dirtct Election of PmHltnt an4 Vie- Pmidltflt. IS J Res 1••r Mol PrOVIde for direct popular eMcllon of Pmident and Vic. President.

Pending in Judiciary subcommittn

Judiciary subcommin. began hearings 1127n7

Suppons

Judiciary subcommittH held briefings

No bills introduced

Supports S I, 94th Congress.. with amend menU, as basis lor legislation

Pending In Judiciary subcommlttn

Pending m GO'tImmental Aftain Ind Judiciary subtomlT'lllues

Supports in principle

Judiciary subcommittH began hurings

No bills Introduced

Supports in principle

Pendingln Judiciary subcommittH

No bills Introduced

Supporu in principle

L.pl Sll'Vites Authorintion. {H R 55281 Renew authorizatIon lor two V"t'S, remow progt1lm restrictioRS.

Judiciary subcommitt. approvtd 3/17/77

No bills Introduced

Supports

NatiolUll Caurt of Appals.IHR 39691 To establish a NationaJ Court 01 Apptlls.

Plnding in Judiciary subcomminee

No bills introducld

Nltto",1 Institute of Jurtie-. Establish ftdertl Ifill mearch institut•.

No bills Introduced

No bills Introduetd

Supports

No-huh. (HR 15971 Estabhsh national standards for state no-fault benefit plans..

Pending In Commerce subtommiltH

No bills introduced

Opposes

Sptcial " . . .tOf. IS 555, TIll. I; HR 2135) Provide for the appointmenl of a IPICIII pro_ulof 10 IPprop'lIt. U$l!S.

Pending in Judlciarv subcommiltH

Fed.,al Criminal Code Revision. IHR 23111 Revise 18 USC; codify, revise and amend federal criminal laws.

Finlncill Disclosurf. {S 313; HR 1, It .J Provide for hnaneial disdosufl bV high·11"II1 IXttutiv',IIlIwativI, and ludicial officilis.

Grand Jury R.form. IHR 94 Ir system.

.1.1 Provide for reform of grand JUry

Jucl;a.1 hnurt. (HR 18501 Establish a Council on Judic~1 Tenur•.

Victims of Crim•. {S 551, HR 36861 PrOVide goots to slatn lor payment 01 compensation to victims 01 c.rtain crimes.

3/23m, 3/3./71

3117m

Judiciary subcommittH began hearings

3/29177

Supports only reference jurisdiction

hndingln Governmental AHain and Judiciary subcommittees

Supports temporary special proSICutor

Pending In Judiciary subcommittee

Supports

July 19n/Arkansas Laywer/121

EXECUTIVE COUNCIL NOTES

by Cyril Hollingsworth Secretary-Treasurer

The Executive Council had a regular meeting on May 13, 1977. The following are some of the highlights of that meeting.

Proposed Budget lor 1977-78. After discussion, the Council adopted a proposed budget for the year 1977-78 in the total amount of $185,250.00. This proposed budget will be submitted to the House of Delegates at the annual meeting of the Association.

Northwest Arkensas Legal Services.

Jim Cypert, the incoming chairperson of the Council. presented some information on the new legal services corporation for Northwest Arkansas. A board has been appointed, applications for director have been taken, and a target date for opening the program is July 1, 1977. Following discussion, it was moved by Wayne Boyce, seconded by Bob Ross and unanimously passed that the Arkansas Bar Association, recognizing the value of law school clinical education programs, recommends and urges that the Board of Directors of the Northwest Arkansas Legal Services Corporation develop a continuing cooperative program with the legal clinic department at the University of Arkansas Law School at Fayetteville.

Following further discussion, Leroy Autrey moved, John Mac Smith seconded. and the Council adopted the following resolution: The Executive Council recommends that the Legal Services program be Implemented in Arkansas and that lawyers through their locai bar associations become actively involved with and participate in the administration of the program.

Report 01 Speclallzetlon and Lawyer Advertising Commillee. Russ Meeks gave the report of this Committee, which is chaired by Jeff Starling. The Committee has met regularly and has undertaken substantial work and study. The Committee has considered the programs and work of the other states with respect to specialization and is preparing a draft proposal on specialization in Arkansas. Mr. Meeks emphasized the need for lawyers to become familiar with this area so that the proposal can be considered.

122/Arkansas Lawyer/July 1977

Report 01 Legislation Commillee. Jim Rhodes, chairperson of the LegiSlation Committee, submitted a summary of legislative activity on matters of interest to the Association in the recent session oT the Legislature. The Council discussed at length the need for effective communication by the Association with the Legislature and particular needs in order to achieve the same. Following the discussion, it was moved by Charles Carpenter, seconded by Joe Woodward, and passed that the Executive Council recommends to the House of Delegates that an ad hoc committee be appointed to study the report of the Legislation Committee of the Association and the possibility of more effective representation of the Association in the legislative process. In addition, it was moved by Leroy Autrey, seconded by Charles Carpenter, and passed that the Executive Council recommends to the House of Delegates that there be included in the budget an item for a Legislative Representative each year and for continuation

of the Legislative Report to the membership.

Workmen's Compenaatlon System.

Following a presenlation by Col. Ransick, who reported that the sale of the Corporation system has been going well and that the Probate system should be ready for the Fall Legal Institute, Joe Woodward moved, seconded by Randy Ishamel, that the Association allot up to $7500 as seed money for development of the Workmen's Compensation system.

The motion carried.

Continuing Legal Education InsUtute.

Herschel Friday and Dean Robert Walsh reported that a line authorization had been approved by the Legislature for a director of the Institute. The same also has been approved by the University and its Board of Trustees. It was noted that certain sections of the Association will continue with some of the regUlar educational programs. Dean Walsh emphasized that it would benefit the Law Schools to be able to interact with practicing lawyers in the work of the Institute.

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Arkansas Govarnor David Pryor Is shown signing tha Arkansas' varslon altha "UniIorm Adoption Act. Looking on IL to R) ara Arkansas Raprasantatlva Bill Sharman, sponsor 01 the bill In tha Arkansas Housa 01 Raprasenlatlvas; Kathlaan Woods, Head 01 the adoption division 01 the State Social and Rehabilitative Services; Ivan Smith legal counsellor the Agency; and Cyril Hollingsworth, Secretary 01 the Arkansas Ba;

Association.

ADDENDA

by C. E. Ransick Editor

CROSSWORD PUZZLE

"LEGAL MALPRACTICE TIPS

We presented a "legal" crossword puzzle in the April 1977 issue of The Arkanlal Lawyar, prepared by Associate Justice George Rose Smith. We guessed that it would take you 15 minutes to complete -this was before we found out that Judge Smith had not given a definition for "12 down" - which "renews" our faith in Murphy's law. Here's the solution. ~

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MALPRACTICE Under the Association's professional liability insurance agreement with CNA, we are committed to publishing various

aids to lawyers for avoiding legal malpractice. AEGIS is one of these aids. We are indebted to the Virginia Bar News, October

1976, for the following:

IF YOU DON'T DO IT, THEY MIGHT DO IT TO YOU Most acts of legal malpractice probably do not involve any overt fraud or misrepresentation by the defendant lawyer. The

following list of acts of presumably "unintentional" legal malpractice was excerpted from an article, "There But For The Grace Of God, Go I," in the Fall 1975 California Trial Lawyers Journal, by Edmund L. Regalia and Leslie A. Johnson of Oakland, California.

1. Failure to file a complaint prior to the running of the applicable statue of limitations.

2. Failure to prosecute an action in a timely manner to avoid dismissal.

3. Failure to take or properly file an appeal.

4. Failure to file and serve notice of new trial.

5. Failure to capitalize on a victory in court, I.e., failure to enter the judgment.

6. Failure to draft findings which properly reflect the decision.

7. Failure to respond to notice for a new trial.

8. Failure to execute against assets.

9. Failure to pursue other remedies.

10. Failure to raise or pursue a defense to which the client is en tilled.

11. Failure to properly draft documents.

12. Failure to properly advise the client of legal responsibilities.

13. Failure to advise promoters of corporations that they have certain duties toward the corporation.

14. Failure to adequately research a legal question.

The Smith Ruling: New Standards of Care And under the California Cou" ruling in the Smith case, which may become the reigning precedent nationwide, attorneys are expected to: 1. Possess knowledge of those plain and elementary principles of law which are commoniy known by well-informed attorneys.

2. Discover those additional rules of law which, although not commonly known, may readily be found by standard research methods.

3. Undertake reasonable research in an effort to ascertain relevant legal principles in unsettled areas of the law.

4. Make an informed decision as to a course of conduct based upon an intelligent assessment of the problem." continued on page 124 July 1977/Arkansas Lawyer/l23

Addenda, continued from paga 123

standards which should govern the conduct of its members in their professional relationships.

A resolution, adopted January 15, 1838, directed the presi-

THREE IN ONE

dent to appoint a committee of three to draft a petition to the Legislature, praying an appropriation for the procuring of a law

Many bar associations across the Country have been celebrating the 100th anniversary of their founding. The Arkansas Bar Association is unique in this connection - being in fact

Bar licensed to practice therein. I do not know to what degree this resolution contributed to the establishment of our very fine Supreme Court library, but it Is, so far as I have been able to learn, the first recorded activity of the Arkansas Bar Association.

library for the use of the Supreme Court and members of the

"three in one" and dating back to 1837. We quote from the late Eugene A. Matthews' address, Looking Backward to See Forward, given at the 59th Annual Meeting of the Arkansas Bar Association on June 7, 1957.

"If we measure the age of this Association from the time of its reorganization in 1899, then this year we celebrate its 58th anniversary. If we extend its antecedents back to the reorganization of the State Bar in 1882, then we mark the 75th birthday of our Association. If, as I think we should, we trace our beginnings to the organization of the first State Bar Association in 1837, one year after Arkansas was admitted to the Union as the 25th state, then we celebrate the 120th anniversary of organized bar activi-

After expiration of the 1837 Association during the troublesome days of the Civil War, it was not until 1882 that the State Bar was reorganized. Of those who participated in its organization, Mr. F. G. Bridges, of Pine Bluff, Arkansas, alone survives. I regret that lime does not permit the naming of that illustrous

group that gathered on May 24, 1882, to reorganize the Association, among whom were the forebearers of many of the present members of our Association.

The 1882 Association was quite active for some years but

9radually the members lost interest, perhaps, as Mr. George B.

ties in the State of Arkansas.

Whether we measure our past in the terms of a half century, three-quarters of a century, or a century, each as we may like, it has occurred to me that you would have some degree of interest in a fleeting examinalion of the nature of the men and the movements recorded in the annals of the organized Bar of Arkansas.

Rose says, because they were not able to induce the Legisla-

The Constitution of the first Bar Association of the State of Arkansas, adopted in 1837, is set out in the appendiX to the proceedings of the 1904 meeting ot this Association.

Section 2 provides: 'the Association shall be perpetual. Its

January of 1899 with Judge U. M. Rose as its first president, the first meeting being held at Little Rock on January 2 and 3, 1900.

The report of the 1900 proceedings shows there were 224

leading objects are to promote courtesy and kindness in the intercourse of its members; to establish uniformity in certain points of professional conduct, and to protect generally the in-

alive today.

terest and dignity of the Bar.' The Association did not achieve its claim to perpetuity, for it

perished, probably during the Civil War. The Articles of Association provided for a preSident, vice-president, a secretary and three standing committees, being the committee on membership, the committee on expenditures and the committee on professional courtesy.

This Constitution adopted long betore the formation of the American Bar Association and the establishment of its Code of Ethics, contains a minute and very splendid statement of the

NEW LOGO The Arkansas Bar Foundation has adopted this new logo or seal to express its purposes. The three concentric circles represent the Foundation, the Bar and the beneficiaries of the Foundation's programs. The uplifted torch "speaks for itself"-

highlighting the educational, literary and charitable purposes for which the Foundation was organiZed in 1958.

The new logo will immediately be put to two uses, viz., the center of the new Foundation banner in gold on royal blue: and the lead for a new Regular Feature in The Arkan.as Lawyer on the Foundation. The banner will be used at various Bar meetings to attract attention to displays of the Foundation's promotional materials.

The Arkansas Bar Foundation is generally recognized as "the" most effective Bar foundation in the Country. Arkansas lawyers can well be proud of their related accomplishments to

date. Hopefully, they will continue to support the many activities of the Foundation. The new article in The Arkan... Lawyer will feature coverage of the lawyers' support and of the Foundation's accomplishments, activities and future plans.

12A/Arkansas Lawyer/July 1977

.:1..

'-

ture to adopt any of the reforms which they advocated. The moment of its dissolution cannot be fixed. It is interesting to

note that in the State History Commission in Little Rock will be found the proceedings of that Association for the years of 1882 through 1886. Then for several years there were no gatherings of the Bar until our present Association was organized in

members of the organization, less than a dozen of whom are The Constitution was a very simple one, consisting of eight articles and providing for officers consisting of the president, one vice-president for each judicial circuit of the state, a secretary and a treasurer.

Early in its existence, the Association indentified itself with the American Bar Association. The 1902 proceedings recount-

ed the appointment of delegates to its next meeting. In that year JUdge U. M. Rose was serving as president of the American Bar Association, an honor which has come to no other Arkansas lawyer," (see Arkansas Law Review, Volume II, Summer 1957, Numbar 3, at pages 273-287.)

Arkansas Eminent Domain Digest Compiled by the University of Arkansas tor the Arkansas State Highway Commission.

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This workbook serves as a guide to drafting a simple will, testamentary planning for benefit of minor or aged, forms of property ownership, purposes and techniques of making gifts, drafting partnership and business purchase agreements and many other important topics. The handy loose·leaf format makes this source a unique working tool-an invaluable reference for the Arkansas lawyer.

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JONES LEGAL FORMS 10TH EDITION' THREE VOLUMES· 1962

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