JULY 1992

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Results of the April FAX POLL W. r.c.lv,d 30 rssponsulo our FAX POLL from April 1992. B.low ars/hsruuns, Ilgursd by p.,c.n/ag•.

Sam. psrc,n/ag.s will no/ add 10 100'Y0 as mors/han on. amw., was glv.n.

1. How satisfied are you with your career?

30% a. Very satisfied 27% b. Satisfied 33% c. Not very satisfied 10% d. Totally dissatisfied 2. Does your happiness/unhappiness stem from:" 57% a. Intellectual stimulation 33% b. Prestigious position 27% c. Thrill of competition 43% d. Money you are making 13% Other, including 'service to others" and 'Judges won't follow law or reason' "'t was not made clear that the respondent need,d to circle happiness or unhappiness, so answers were for enher.

3. If you could start over, would you choose the legal profession?

50% Ves 46% No 4. Do you expect to stay in the legal profession for the rest of your working days?

50% Ves 17% No 33% Maybe 5. II you could find ajob outside of the legal profession today, paying what you are making now, would you take it?

37% Ves 40% No 23% Maybe 6. II your child came to you for career advice, would you recommend the legal profession?

37% Ves 33% No 27% Maybe 7. II you answered yes to 16, why would you recommend the legal profession?

30% a. Intellectual stimulation 20% b. Prestige 40% c. Gratifying Work 27"/. d. Money 7% said other including 'Service to others'

This Issue's FAX POll has to do with the image of attorneys in our country and how you perceive that image.

Keep up the good work - 30 responses is more than I've had to anything!

1. Do you feel attorneys have an Image problem in America?

__ Ves __ No __ Not Always 6. Do you fhink they know what the Model Rules of Professional Conduct are?

Ves

Ves

No

No __ Maybe 7. Do people tett you lawyer jokes? __ Incessantly

2. Do you feel attorneys have an image problem in Arkansas?

Ves

No _

Often

Maybe

Seldom Never

3. If you answered "yes' to either 1 or 2, why do you lhink the problem exists?

False information

8. Are you olfended by lawyer jokes?

Ves

__ Unfair blame placed by other professionals __ We don't live up to what we should

No Sometimes

9. Do you tell lawyer jokes?

Ves

No

__ Other, please comment __ Only if it's a really good one!

8. How long have you practiced law?

7"/. a. less than 5 years 20% b. 5-10 years 50% c. 1(}-20 years 13% d. 2(}-30 years 10% e. More than 30 years P.S. During the last quarter, which did you find more disgusting: 17% a. The press coverage of George 8ush losing his sushi in Japan 67% b. The press coverage of Gennifer Flowers and her 'love tapes' 10% were equally disgusted by both.

5. Do you believe they work hard to follow the Model Rules of Professional Conduct

P.S. If you had to vote today, who would you vote for? __ George Bush 4. Do you believe lawyers in Arkansas are honest?

Bitt Clinton

__ Ves __ No __ Not Always

Ross Perot

r:r;'(1'J1T!11~II!t!'!'lI~~P.'f!'9'!'P.'I'

"""A 'III~ ~lIl1illillo: The Arkansas Lawyer at 375-4901 ,"UIIII"'IIIHIliU

or mail to 400 W, Markham, Little Rock. Arkansas 72201

LETTER

FROM

THE

EDITOR

Is there a Defense?

By Paige Beavers Markman

Recently, I was at a dinner party with several couples in their mid-to-Iate twenties when the subject of lawyers once again came up as the debate for the night. As usual, everyone looked to me to be on the defending side of the profession -- they call me the "hired gun" for the lawyers of Arkansas. Where does this hostility come from? Let me preface the rest of the story with the fact that the ring leaders of this group are the children of doctors, and I mean doctors who hate lawyers. But, being as I'm with child and was without the benefit of a pre-dinner cocktail, I thought I'd just sit back for this one and let them rant on for a bit.

This time I heard some more factual reasons for "the world's a mess thanks to all the lawyers" scenario. The usual theory of lawyers causing all the lawsu'its, packing our courts with frivolous suits came up, but someone, we'll call him 'Dr. }.', also stated that in 1980 there were 300,000 lawyers and in 1990 there were more than 900,000. From ABA reports we have here in the office I know that in 1991 there were approximately 771,119 lawyers in the United States and that the estimates are showing the possibility of 1,000,000 by the year 2000. Another person, we'U call her "Ms. Sweetpea" espoused her personal knowledge about the fact that lawyers and their lawsuits were also the cause of the high costs of health insurance in our country. I had to speak up at this point to teU her that the costs of healthcare were due to the cost of doctors and because hospitals choose to charge patients $10 for a box of Kleenex. As you can imagine, this was not a real popular theory among these children of doctors. And, of course, at this point someone said, "She has to say that; she's paid to defend lawyers." Well, I could see that this was going to quickly get out of hand so I told them that I really didn't think any of uS were well-informed enough to have an intelligent conversation about the matter. We moved on to the Bulls and the Trail Blazers.

The next day though, I felt the need to find out whilt il lawyer thought. I ilsked my wise grandfather, retired attorney at law. He said that, yes, there were a lot more lawyers (maybe too milny) but that would tilke care of itself ilS it does in ilny profession. He also said that no, lilwyers don't cause lawsuits but they do facilitate them being brought into court. On the subject of healthcilre, he said that the cost of malpractice insurilnce has added to healthcare costs, and that anyone with a good imagination could find a way to blame that on lawyers. But his main point was: Try having a Uvable society without laws and lilwyers!

All of these ilrguments cillmed me for the dily, but now I want more. I don't mind being your "hired gun." I just want more information to bilck it up. So I'm once again asking you to write, cilll or FAX. What would you say to someone rilnting to you about lawyers and lawsuits as the fall of civilization?

4 ARKANSAS LAWYER

JULY 1992

VOLUME 26, NUMBER 3 PUBLISHER

Arkama.r Bar Alsociation EDITOR & ART DIRECTOR

Paigt Btovtrs Markman Dirtctor ofPRlMarktting

ARKANSAS BAR ASSOCIATION 400 \'if. Markham little Rock, Arkansas 72201 OFFICERS President John P. GiU President-EJect E. Lamar Pettus Secretary -T reasu~r Rodnq' E. Slater Executive Council Chair Rosalind M. Mouser Executive: Director William A. Martin Assistant Executive: Director Judi'h Gray

In This Issue:

4

Letter from the Editor

7 8

The Roxanne Tomhave Wilson Scholarship Disciplinary Actions

11 President's Message 12 General Practitioners Primer: Recycling In Arkansas: Selected Policy & legal Issues

By John P. Gill

By Walter G. Wright, Jr. & Ark Monroe III

21

In Memoriam

23

YLS Column

By Lucinda McDaniel

24

Law Office Technology Review PCLAWjr. to Automate Small Law Office

By Barry D. Bayer & Benjamin H. Cohen

26

COVER STORY: John P. Gill: The Man with a Plan, Really

By Paige B. Markman

31

Law, Literature & Laughter

By Victor A. Fleming

34

The Developing Law The Revocable Trust: A Challenge for the Arkansas legislature

EXEClTTlVE COUNCIL J~ Benson Sanford Bahat

William Clay Brazil Thomas M. Carpenter Michad H. Cr.rwford

Boyce R. Davis Vincc:nt Foster, Jr.

Stephen A. Geigle: Dave W. Harrod Henry C. Kinslow Roben Lynn Lowery Jerry C. Post

J. Thomas IUy Eddie H. Walk«.Jr. Robert E. You ng EX·OFFICIO John P. Gill

E. Lamar Petrus James H. McKenzie Rodney E. Slater Rosalind M. Mouser

Lucinda McDanid

The ArkansOl§ Lawyer (USPS 546-C40) is published quarterly by lhe Arkansas Bar AssociatiOn. Second

class postage paid at Little Rock, Arkansas POSTMASTER. send address changes to The

36

42

Important Update for Members The CNA loss Control Program

44

From lawyerin' to Judgin': Life on the Supreme Court After One and a Half Years

Arkllnsas Ulwyer, 400 West Markham. Liltle Rock.

Arkansas 72201 Subscription price to nonmetr'bers of !he Arkan~.n Bar Association $15.00 per year and to members 510.00 per year included in _Mual dues Any opnion expressed herein is that of the author. and not necessarily that of the Arkansas Bar Association or The Arkanus Lawyer Contributions to The Arkansas Lawyer are welcome and should be sent in two copies to EDITOR. Arkanus Lawyer. 400 West Markham, Little Rock, Arkansas 72201. All Inquiries regarding advertising should be sent to The Arkansas lawyer at the above address

The 1990 Arkansas Judicial Elections: Much Ado About Nothing?

47

In House News

50

AICLE Calendar

By Leonard Scott & Steve Bauman

By James D. Gingerich & Warren Readnour

By W. A. ·Chip· Harper

By Associate Justice Robert L. Brown

II II

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The Roxanne Tomhave Wilson Scholarship Roxanne Wilson was a gifted lawyer, an extremely active member of the bar, and a special friend to countless lawyers across the State. Her recent death, at far too early an age, has left us all with a profound sense of loss. As Judge Henry Woods observed during his eloquent eulogy of Roxanne, she was an exceptional person who distinguished herself in every facet of her life.

A number of Roxanne's friends have formed a committee to solicit contributions for the Roxanne Tomhave Wilson Scholarship which will be administered through the Arkansas Bar Foundation. The goal of the committee is to raise far more than the minimum necessary to have a named, endowed Arkansas Bar Foundation scholarship. The annual interest earned on the corpus of the endowment will be used for a scholarship to help a deserving student and to serve as a perpetual reminder of how much Roxanne meant to all of us. The committee believes such a scholarship will be a

uniquely appropriate way for those who knew, respected and loved Roxanne to honor her memory.

Contributions to the Roxanne Tomhave Wilson scholarship should be in the form of checks payable to the Arkansas Bar Foundation and mailed to 400 West Markham, Little Rock, Arkansas 7220l.

The Arkansas Bar Foundation is an IRS Code 501 (c) (3) organization and gifts to it are charitable contributions for

tf\

"'k'~M

income tax purposes.

Roxanne and Bill Wilson were consistently among the first to make memorial gifts and scholarship contributions to the Foundation when a lawyer or friend of our profession died. Thus, it is most appropriate that an Arkansas Bar Foundation scholarship now be established for Roxanne. The committee hopes that all of you will join in contributing to this lasting memorial to Roxanne.•

,ha""bl.

The B" Found"'on " tho arm of the Association. At the end of April, its • • Trust Account endowment stood at $1,068,396 195i§ of which $344,964 represented named endowed scholarships. The corpus of this Trust Account is reserved for two purposes: (1) the portion contributed for named endowed scholarships is invested to produce income to fund the respective scholarships; and, (2) the remainder of the Foundation's corpus is invested to produce income to fund the many special projects that are sponsored or subsidized by the Foundation. The Foundation's Investment Committee is chaired by James Sharp and includes Charles Eichenbaum, Louis Ramsay and John Robert Graves. All of the funds in the corpus of the Foundation's Trust Account are invested in federally insured instruments. ~

i

DISCIPLINARY LOUIS ARTHUR DODRILL

The Arkansas Supreme Court in Dodrill v. Committee Professional Conduct, 308 Ark. 301, __ SW2d affirmed the (1992), Committee's action suspending Mr. Dudrill's attorney's license for a period of one year for violation of Rules 1.1, 3.1 and 8.4(d) of the Model Rules of Professional Conduct.

The complaint was filed against the attorney by United States Bankruptcy judge james Mixon and was premised on allegations of incompetence, abusive behavior and frivolous litigation. [n late 1988, Mr. Dodrill, on behalf of a debtor in a bankruptcy proceeding, filed a complaint in federal district court against the debtor's former bankruptcy attorneys. The complaint was amended in February 1989 to add the trustee in bankruptcy and the trustee's law firm as defendants. In March 1989, the district court transferred the action to bankruptcy court. The debtor's former attorneys moved to dismiss the complaint. On April 26, 1989, Mr. Dodrill moved to dismiss his complaint against the former attorneys and it was granted on May 11, 1989. The trustee and his firm moved for dismissal on May 16, 1989. The court treated it as a motion for summary judgment and granted the parties additional time to file motions or affidavits. The movant timely filed affidavits but Mr. Dodrill did not offer anything further. judge Mixon granted summary judgment on September 11, 1989. Mr. Dodrill petitioned to remove the trustee on grounds of fraud and waste. A hearing was held on August 30,1989, at which Mr. Dodrill produced evidence no evidence of fraud, waste or other misconduct on the part of the trustee. The court granted a directed verdict in favor of the trustee.

On October 18, 1989, Mr. Dodrill filed another complaint on his client's B ARKANSAS LAWYER

JULY 1992

ACTIONS

behalf against the trustee, the former attorneys and a third party corporation. Damages in the amount of $158,903.65 were sought for the defendants' alleged wrongful conduct. All defendants moved to dismiss. After a hearing on the motions, Mr. Dodrill moved to dismiss the complaint. The motion was granted.

Motions for sanctions against Mr. Dodrill and his client were filed. The motions alleged violation of Bankruptcy Rule 9011, which required an attorney's verification of the veracity of pleadings and certification that the cause of action was brought in good faith. The court found that Mr. Dodrill and his client had been irresponsible in their behavior before the court. Monetary sanctions in the total amoont of $28,249.36 were awarded litigation expenses and attorney's fees.

JOE KEllY HARDIN joe Kelly Hardin, Benton, Arkansas, was issued a letter of caution for violation of Model Rules 1.3 and 8.4(d) as a result of a complaint filed by a judicial officer.

Mr. Hardin, represenling the defendant in a criminal case in Garland County Circuil Courl, failed to comply wilh the court's scheduled for discovery motions and did not appear at the scheduled pre-lrial hearing.

CHRISTOPHER

C.

MERCER, JR. Christopher C. Mercer, Jr., Little Rock, Arkansas, was issued a letter of reprimand for violation of Model Rules 1.3 and 8.4(<1) as a result of the

Arkansas Supreme Court's Per Curiam granting appellant Rodney McDuffie's motion for a belated appeal. Mr. Mercer represented McDuffie at trial. Following his conviction, McDuffie expressed his intent to appeal but indicated he desired other counsel to pursue the appeal. The client was unable to fully satisfy the other counsel's retainer fee before expiration of the time for filing notice of appeal. It was found that Mr. Mercer had not withdrawn as counsel of record and had a continuing duty to his client to perfect the appeal. Mr. Mercer did not respond to the complaint before the Committee.

JOHN STEVEN CLARK Upon recommendation of the Committee the Arkansas Supreme Court on May 4, 1992, accepted the surrender of the law license of john Steven Clark, jonesboro, Arkansas.

Mr. Clark had been convicted in Pulaski County Circuit Court on a felony charge of theft of property.

Such conduct violated Model Rule 8.4(d).

KEITH CARLE Following a public hearing, Keith Carle, jonesboro, Arkansas, was reprimanded by the Committee for violation of Model Rules 1.I6(c), 3.5(c) and 8.4(d) as a result of a complaint by a judicial officer. On the date scheduled for jury trial, Mr. Carle, representing the defendant in a civil case, filed with the Mississippi County Circuit Court a document entitled "Notice of Withdrawal". As grounds for the motion Mr. Carle cited purported insurmountable

DISCIPLINARY scheduling conflicts caused by trial date of the civil case and his representation of other clients scheduled for trial during the same period in other courts. One client faced serious criminal charges and the other was involved in a custody matter in juvenile court. Mr. Carle also predicated his withdrawal notice on his assignment of higher priorities to legal matters involving personal liberty and custodial rights as opposed to a lawsuit for money damages. The court advised Mr. Carle that is was within the sound discretion of the court whether to permit withdrawal. Mr. Carle stated his intent not to proceed to trial. The judge advised the attorney that his persistent refusal to proceed to trial could constitute contemptuous conduct. Mr. Carle acknowledged that consideration but remained steadfast in his refusal to go to trial.

The case was continued and the defendant was assessed the jury costs and the plaintiff's cost for trial preparation.

ACTIONS

from the practice of law for a period of three months for violation of Model Rules 1.3, 1.4, 3.4(c) and 8.4(d) as a result of the Arkansas Supreme Court's Per Curiam granting appellant Willie Wright's pro se motion for a belated appeal. Mr. Wright requested Mr. Malaby to perfect the appeal of Wright's August 29, 1990, criminal conviction. The client's repeated requests for information regarding the appeal went unanswered. The client discovered a notice of appeal was not filed and he filed his motion for belated appeal on June 24, 1991. The record reflected that Mr. Malaby had not withdrawn as counsel. The Court caused a copy of the pro se motion to be sent to Mr, Malaby for response.

Despite three additional requests, the attorney failed to provide a responsive affidavit. Mr. Malaby failed to respond to the Committee's complaint.

RONALD J. BRUNO DAVID WILLIAM

MALABV,JR. David William Malaby, Jr., Texarkana, Texas, was suspended

Ronald J. Bruno, North Little Rock, Arkansas, was issued a reprimand for violation of Model Rule 1.16(d) following a public hearing as a result of a complaint filed by Orlan Dwight Stark. Mr. Stark, who had been a

client of Mr. Bruno for several years, loaned the attorney $3,000.00 in November 1987. It was agreed that the money would be credited as an advance fee for the periodic legal services required by the client. In early 1990, Mr. Stark received billing statements that he did not think reflected accurately the status of his account balance. Upon obtaining the lawyer's ledger sheets, Mr. Stark discovered that the first debited expense following credi t for the advance fee resulted in a mathematical error of $900.00 and, thereby, incorrectly reduced his credit balance. In June of 1990, the client advised Mr. Bruno of the inaccuracy of the account balance but did not point out the specific $900.00 error he had discovered. Mr. Bruno was requested to audit the client's account. The attorney denied the existence of errors in the account and declined to audit the records and ledger sheets of what he maintained were extensive and covered several legal matters over considerable time.

At the hearing Mr. Bruno, admitted that a subsequent audit did evidence errors in the client's account.

However, the attorney said other expenses had not been properly posted to the ledgers and that Mr. Stark was entitled to a refund but not in the amount claimed.

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PRESIDENT'S

MESSAGE

Please, Donlt Call Me IIMister

ll

By John P. Gill

When you call me mister you erect a barrier to professionalism.

I lost my young lawyer status two decades ago, but don't call me "mister" because I still hold dear that young lawyer ideal that you and I are officers of the court, specially educated, and licensed by the state to serve others. We can't serve others until we know one another well enough to be on a first name basis. [n a disagreement with one of my partners, he said (as we talked it out), "I'm glad we became friends before we became partners."

Only when we have a comradery and a friendship will we have professionalism, because friends don't let friends down.

Friends don't mistreat friends.

Friendship is not built on lies, me-first, and rudeness. It is unprofessional to lie; it is unprofessional to be selfish; it is unprofessional to be rude. It is unprofessional not to return phone calls the day they are received. [t is unprofessional to be egocentric. Although I was

born during the centennial of Arkansas statehood, I'm still young enough to remember that this is an honorable profession to which all of us are "called" to serve others. As professionals, we are called first to sacri fice, not to drive a Mercedes. Sacrificing ourselves to solve a problem means joining with our adversary in the search for truth. Calling me "mister" can't help find truth; it only erects barriers.

One of Arkansas' great trial judges, Tom Digby, astounded me some years ago with a notice on his door requiring adversaries in any trial to contact each other and introduce themselves to each other before trial. He told me the notice grew out of lawyers not speaking before trial. How unprofessional can we be not to talk to each other before trial?

How do you participate in dispute resolution if you don't talk to your adversary about the dispute and explore its resolution. I'm against mandatory Alternate Dispute Resolution. I'm for voluntary ADR and the

professionalism which makes mandatory ADR unnecessary. A hired gun interferes with dialogue and with professionalism. If you're in this profession for money, or for winning, you're in it for the wrong reasons - your own ego. If you concentrate on professionalism, it is my experience that winning and money take care of themselves.

Professionals communicate as well with each other as they do with jurors.

Members of the Methodist Church years ago were called "brother" or "sister". While I'm not ready for that, please don't call me mister either. Just call me John and we'll start off without one barrier to communication.

We will have a better Bar, and if I'm in a lawsuit with you, we'll start off without barriers, and begin the brother-sisterhood of professionalism. That doesn't mean I'll settle with you, but it does mean we'll concentrate on the issues, not egos.â&#x20AC;˘

The State of Arkansas generates approximately 1.9 million tons of solid waste each year.! Only 5% of this material is recycled or composted and never enters the solid waste stream. Three percent of the material is incinerated, and an astounding 92% is deposited in landfills. Because of this low recycling rate and the state's continued reliance on the use of landfills, the Arkansas Legislature has enacted legislation to encourage and expand recycling in Arkansas.

Our nation's dependence on landfills troubles a number of government and private groups.

They have expressed concern about the possible threat to groundwater posed by antiquated or poorly designed sanitary or solid waste landfills. Whether real or perceived, this is being addressed by the landfill design standards found in the Arkansas Solid Waste Management Code and the recently upgraded Resource Conservation and Recovery Act ("RCRA")2 sanitary landfill regulations. 3 The cost of these upgraded standards, however, is expected to prevent many traditional landfill owners, such as cities and counties, from either continuing their

operations or siting new ones.

Consequently, either state regional solid waste districts or heavily capitalized private companies are expected to site and operate most of the upgraded landfills in the future.

Unfortunately, it is increasingly 12

ARKANSAS LAWYER

JULY 1992

difficult to site new landfills and incinerators because area residents fear potential health problems and decreased property values. Landfill and incinerator opponents are remarkably successful in preventing the construction of these facilities, even in the face of dire need and documentation of multiple environmental protection measures.

Many areas of the United Statesespecially the northeast-generate more solid waste than can be disposed of in that region. As a result, the excess waste is shipped to other areas of the country.

Consequently, states with excess landfill capacity often enact legislative and regulatory measures to prevent out-of-state solid waste from crossing their borders.

Arkansas represents somewhat of a microcosm, since the state and at least one of its counties (Miller) has attempted to restrict the entry of solid waste. In addition, at least one area of the state, northwest Arkansas, is facing an acute landfill capacity shortage because of public opposition to the siting of both a waste-toenergy facility and an additional solid waste landfill. Moreover, other factors, such as a Washington County ordinance' restricting landfill development and an Arkansas Department of Pollution Control and Ecology (" ADPC&E") proposal to prohibit construction of solid waste landfills in Arkansas' Boone Geologic FormationS complicate the landfill shortage problem. These measures could curtail the development of solid waste landfills in northwest Arkansas.

Both the State of Arkansas and the nation now recognize that recycling or reusing materials can ease the

traditional dependency on solid waste landfills. Besides recovering useful commodities, manufacturers utilizing these materials as feedstocks help conserve irreplaceable natural resources. The energy necessary to produce a feedstock or raw material is also saved by such recycling or reuse. Of course, the environmental impacts (i.e., air, emissions, water discharges, etc.) related to the prOduction of such feedstocks or raw materials are also eliminated.

These attributes, along with the previously noted landfill siting difficulties, have prompted a number of states to consider and adopt legislative initiatives to encourage and expand recycling" Arkansas has followed this trend. The 77th Arkansas General Assembly first enacted recycling initiatives, and subsequently, the 78th General Assembly expanded them. Since the enactment of this legislation, the ADPC&E has and is continuing to promulgate regulations to implement these programs.

This article will initially review both the legislative initiatives and implementing regulations. It will also discuss the need to ensure that public sector legislative initiatives do not displace or injure the private sector recycling industry which has long been in place in Arkansas. Therefore, a brief overview of the private sector is included.

The recycling of materials defined as RCRA Subtitle C hazardous waste will not be discussed. However, it is important to note that the private sector has and is continuing to develop methods of recycling these materials. In fact, Arkansas has several examples of such efforts.

Rineco Chemical Industries in Haskell (Saline County) processes certain RCRA hazardous wastes (so classified due to their flammability) for use as a fuel by industrial furnaces and cement kilns. The Ash Grove Cement Company facility in Foreman (Little River County), for example, has drastically reduced its need for oi I, na tu ra I gas, and coa I by substituting liquid and solid hazardous waste as a fuel for its large kilns.

A facility whose waste is ultimately mined for valuable metals is found in Newport. The Arkansas Steel Associates steel mill sends its electric arc furnace dust to an out-ofstate recovery facility where, instead of being disposed of, a valuable metal is recovered. Although not classified as RCRA hazardous wastes, used motor and lubricating oils are collected throughout the state and beneficially recycled as industrial

fuels. Some used oils are actually rerefined and once again utilized as new products. Arkansas has a rerefinery in Hot Springs.

I. OVERVIEW OF THE EXISTING SYSTEM. A. Recycling Infrastructure.

Our nation and state's current efforts to legislatively encourage recycling is laudable. However, some efforts have been driven by a misconception that a substantial private recycling infrastructure does not exist. This is an incorrect assumption. Understanding the current recycling private sector will ensure that future legislative and regulatory recycling initiatives do not inadvertently harm this important segment of the industry.

Commercial recycling activities have been ongoing for hundreds of years. Glass was recycled in the 11 th century? and wooden ships were broken up and recovered in the 13th

~

century.8 Recycling in the United States has been well documented since the 1800路s. 9 Even those recognizing the existence of commercial recyclers sometimes assume their recovery of resources is minimal. The public perception of a wandering pedd ler or small junkyard is still common. This is, however, an inaccurate picture.

The Institute of Scrap Recycling Industries ("ISRI"), a national trade association of commercial recyclers, estimates that its members alone return over 90 million tons of recovered materials to the economy every year as specification feedstocks for incorporation into new products. to In fact, there are thousands of processors, brokers, and consumers of scrap metal, paper, glass, plastics, and textiles operating sophisticated plants and facilities nationwide.

A specific example is the private sector's assistance in recovering scrap

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漏

aluminum. The aluminum industry's recovery from purchased scrap during the past 10 years has provided about 25% of the total aluminum metal supply in the United States. ll Likewise, glass manufacturers estimate that recycled glass comprises approximately 30% of every container they produce. 12 The paper industry states that more than 26% of its raw material requirements are fulfilled by recovered paper. 13 The State of Arkansas has its own private sector recycling infrastructure.

Dozens of facilities in the state process, broker, and consume a variety of scrap commodities. These facilities and plants represent tens of millions of dollars of capital investment. Individual pieces of equipment (such as shears, balers, cranes, and sorters) often cost hundreds of thousands of dollars a piece. Facility and plant ownership ranges from multigenerational family businesses to large publicly held corporations.

A score of Arkansas processing and manufacturing facilities use scrap

as a raw material or feedstock. The Arkansas Steel Associates (Newport), Nucor-Yamato (Blytheville), and Quanex MacSteel (Fort Smith) steel mills utilize tremendous amounts of scrap metals to produce finished products; Arkansas Aluminum Alloys (Hot Springs) processes scrap aluminum for use by Nissan plants; SMI Steel (Magnolia) recovers used railroad lines to produce highway signs and fence posts; scrap glass is used by the Arkansas Glass Manufacturing Corporation facility in Jonesboro; and plastic products are produced from scrap plastics at AERT in Rogers.

These and other Arkansas manufacturing facilities are supplied by processing, brokering, and collection facilities located both inside and outside the state. Like most states, Arkansas' manufacturing facilities cannot utilize each and every scrap collected; therefore, many state recyclers transport materials to outof-state industrial consumers. Since few states have a full complement of industrial consumers, these valuable

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ARKANSAS LAWYER

JULY 1992

scrap commodities are constantly crossing state lines in response to market demand.

B. Stimulating Expansion.

Despite the existence of a substantial private sector infrastructure, there is a consensus

that both the total VOlume and types of materials recycled must be increased. Valuable commodities are recoverable in a large portion of the material sent to landfills or incinerators. The key question is what societal or institutional barriers are preventing additional recycling.

The principle impediment to the expansion of the recycling rates of individual scrap commodities is the absence or limited size of a market.

Like other goods or products, scrap commodities are subject to the law of supply and demand. The demand for an individual scrap commodity will probably be dependent upon the system's collection and processing capability, the interest and participation of consumers, and the growth and evolution of markets.

Market development is considered to be the key. Clearly, manufacturers will not voluntarily replace virgin feedstock or raw materials with scrap commodities unless they are cost competitive and equally functional.

Some bel~ve that increasing the supply of recovered materials will lower their market price thereby enhancing demand. The availability of a large, steady supply of these materials would therefore create additional demand.

A somewhat inapposite argument is that incremental markets must precede additional collection. The contention is that some mechanism must create additional demand or such materials will displace other scrap commodities and significantly reduce the price received.

Few would disagree that there is merit in both theories. The following discussion of the State of Arkansas' efforts to expand recycling will focus on some of the individual mechanisms being utilized to attempt to expand supply and increase demand. The potential impact of these efforts on the existing private

sector recycling infrastructure is also considered.

II. ARKANSAS LEGISLATIVE & REGULATORY INITIATIVES TO EXPAND RECYCLING.

T. J. RANEY & SONS

A. The Legislative Initiatives.

In comparison to its pollution control and environmental protection programs, the federal government has been relatively inactive in its efforts to stimulate recycling. Enacted a number of years ago, RCRA contains provisions mandating state solid waste planning for resource recovery and federal procurement of goods utilizing recovered materials."

For a variety of reasons, neither of these efforts has to date been successful. While Congress has proposed new recycling initiatives, Arkansas and a multitude of other states have moved ahead with their own programs.

A public outcry concerning the possible receipt of out-of-state solid waste in southeast Arkansas landfills forced the 77th Arkansas General Assembly to focus on solid waste management issues. While pondering mechanisms that would prevent the movement of solid waste into Arkansas, the Arkansas Legislature took the opportunity to create a recycling grant program and require regional solid waste planning.

Besides instituting a constitutionally suspect moratorium on the movement of solid waste into the state, Act 870 ls creates eight (8) Regional Solid Waste Planning Districts ("RSWPD") corresponding geographically to the boundaries of existing Planing and Development Districts. The RSWPD's Board is required to assess the District's solid waste management needs and ultimately approve or deny certificates of need to any applicant for a solid waste disposal facility within the district. Act 870 also created the Arkansas Solid Waste Fact Finding Task Force (" ASWFFTF") and ordered it to review a variety of solid waste management issues and suggest legislative initiatives.

Act 934 16 assesses a landfill disposal fee to fund regional and county solid waste planning. The

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The 77th General Assembly believed that most individual communities and counties would not have the resources to site and operate solid waste landfills. The regional structure was expected to provide the waste volumes and revenues necessary to operate more advanced facilities. Similarly, a regional area would presumably supply larger and more diverse quantities of scrap commodities. The grant program would also help a county or community partially defray the cost of constructing or purchasing facilities or equipment and thereby enhance the recovery of recyclables whose rate of return has traditionally been low.

After the adjournment of the 77th General Assembly, the ASWFFTF,

under the leadership of Representative Bynum Gibson, convened a series of meetings to discuss solid waste management issues. The ASWFFTF focused particular attention on the status of recycling and resource recovery in the state. Extensive testimony and several field trips provided the ASWFFTF substantial information on the subject. Using the information, the ASWFFTF produced a comprehensive report and a series of legislative recommendations. The legislative recommendations served as the starting point for several of the solid waste and recycling bills ultimately enacted by the 78th General Assembly.

The 78th General Assembly finetuned the existing statutes and developed some new legislative initiatives. Besides tinkering with the regional approach to solid waste management, Act 752 17 mandates that each region provide its residents an "opportunity to recycle" by July 1, 1992. The term "opportunity to recycle" is defined to mean the

provision of curb-side pickup or collection centers for recyclable materials at sites that are convenient.

Each county is required to provide at least one recyclable materials collection center by July 1, 1993. The 78th General Assembly also decided to supplement the grant program and other financial mechanisms available to fund solid waste planning and materials recycling.

Act 749 18 creates a five-person "State Marketing Board for Recyclables" ("Marketing Board") whose duties include the

development of an overall marketing plan for state recyclables. The Marketing Board is directed to monitor existing industries and recruit new industries that utilize recyclables in their manufacturing processes.

Act 749 also requires various state and local governmental entities to develop recycling programs for the recyclables their operations generate.

For instance, the State Purchasing Director is required to issue various recycled paper content specifications and buy increasing amounts over the

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ELISE K. NORMAN RICHARD R. ROBERTS Newton P. Allen 6 ThomOlS R. Prewitt Richard H. Allen Gavin M. Gentry ThomOlS F. Johnston Elmore Holmes, III W. Rowlett Scott J. EdwiUd Wise Edward M. Kaplan Carl H. l.1ngschmidt, Jr. Joseph B. Walker Thomas R. Prewitt, Jr. Prince C. Chambliss, Jr. 3 Thomas W. Dell, Jr. Paul A. Matthews S. Russell Headr~ck Randall D. oel H. Fredrick Zimmermlnn William A. Carson, II Mark S. Norris James R. Hall, Jr.1 Jilmes B. Mclaren, Jr. Pilul E. Prather Teresa J. Sigmon Charles R. Crawford David A. Thornton Stephen P. Hale 2

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Arkansas

3 Alabama 4 Misruri &: Illinois 6 Pennsylvania

oyh Carolina California Walter P. Armstrong 1884-1949

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Counsel Benjamin Coodman Walter P. Armstrong. Jr. 1900 One Commerce Square Memphis, Tennessee 38103·2568 January I, 1992

16 ARKANSAS LAWYER

JULY 1992

James Seddon Allen 1885·1970 Emmett W. Braden 1901·1984

next several years. The State Purchasing Director is allowed to consider recycled paper products "competitive" even if the cost of such prOducts exceeds paper products manufactured or produced from virgin material by up to 10%.

A variety of other recycling initiatives are specified in Act 749.

Plastic bottles or rigid plastic containers may not be sold in the state unless they are labeled according to a coding system designed to specify their particular plastic properties. 19 A new lead-acid battery program encourages their return to the retailer by prohibiting their disposal in solid waste landfills and assessing a $10 charge if the spent battery is not returned. Act 749 also assesses a $1.50 per tire fee to fund regional solid waste district efforts to remove, process or recycle waste tires. The ADPC&E is also required to promulgate a regulatory program for facilities that store, collect and process waste tires. 2o Finally, the existing solid waste grant program was revised to speCify that funds could not be provided for the purchase of processing equipment or facilities if adequate capacity already exists)l Act 748 provides a 30% state tax credit to facilities that invest in "waste reduction, reuse or recycling equipment. 22 The term "waste reduction, reuse or recycling equipment" is defined to include machinery and equipment designed to separate, process, modify, convert or treat solid waste so that the resulting product may be used as raw material or for productive use. The tax credit is only granted if the taxpayer obtains a certification from the ADPC&E that: (1) the taxpayer is engaged in the business of reducing, reusing or recycling solid waste material for commercial purposes; (2) the equipment purchased is waste reduction, reuse or recycling equipment; and (3) the equipment is being used in the collection, processing, separation, or manufacturing of products

containing at least 50% recovered waste materials, of which 10% of the recovery waste material is from postconsumer waste.

B. Arkansas Department of Polllltion

Control & Ecology Implementation.

regulations to implement the program. The ADPC&E has also proposed a set of comprehensive regulations to implement the waste tire provisions of Act 749.

III. POLlCYfLEGAL ISSUES A. The Appropriate Guuernmental

Since its inception, the ADPC&E's Role- Supplementing Private primary mission has been to develop Sector Recycling. and enforce environmental protection The private sector is responsible regulatory programs. The new legislative initiatives have forced the for the development of an existing agency to participate in non- recycling infrastructure that has regulatory activities. To fulfill this collected, processed, and incorpmandate, the ADPC&E has staffed a orated scrap commodities into new Recycling Division. The State products for generations. Private Marketing Board has also begun to industry has already made extensive playa non-regulatory role through its investments in facilities and equipattempts to develop industrial ment and understands both the consumers for Arkansas' scrap national and international markets. commodities.

Supply and demand is, of course, the The ADPC&E has also been the key detriment of market size. state agency primarily responsible for The recycling markets can be the promulgation of the regulations complex. Market understanding by necessary to implement legislative necessity includes knowledge of the initiatives enacted by the 77th and numerous specifications that the 78th General Assemblies. These individual scrap commodities must regulations are in various stages of meet to satisfy demanding industrial promulgation. The ADPC&E has set consumers. There are for example, up a system for the disbursement of two hundred and one (201) Act 934 grant funds through the specifications for metals scraps. In promulgation of Regulation No.1!. addition, there are fifty-one (51) Part 2 of Regulation No. 11 defines specifications for secondary paper what constitutes "eligible grant stock and an additional thirty-three applicants and projects." In addition, (33) specifications for paper specialty the ADPC&E has created a detailed stocks.23 In order to encourage the needed matrix to judge the relative merits of proposals to purchase recycling permanent increase in recycling, the equipment or develop markets. most constructive role for governEvaluation criteria include compati- ment is to work with the private bility with governmental plans, cost sector to enhance and expand the effectiveness, degree of innovation, existing network. The private sector applicant need, ability to complement must receive the necessary incentives existing services, realistic budgeting to finance, support, operate, and and organization of the proposal. The utilize the additional infrastructure ADPC&E released $2,750,000 in funds and scrap commodities it produces. to grant applicants in 1991 's Grant Fortunately, the Arkansas Legislature Round No. 1. recognized this principle in some of The ADPC&E recently promul- the legislation enacted by the 77th gated Regulation No. 16 to implement and 78th General Assemblies. the tax credit mechanism provided by However, it is worth addressing a few Act 748. It establishes a certification particular issues in view of the procedure which the ADPC&E uses probability that additional legislative to determine whether the expend- initiatives will probably be itures are for equipment or facilities considered in upcoming legislative encompassed by the relevant sessions. Also, the ADPC&E will definitions. Note that the Arkansas continue to play an active role in this Department of Finance and Admin- area in their promulgation of istration promulgated companion regulations along with the

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1. The state grant program for

pl/blic recycling facilities.

The State of Arkansas' recycling legislation mandates that all citizens in the state have an opportunity to recycle. A grant progra m to fund planning and governmental equipment acquisitions is also provided. All local jurisdictions should work to instill a recycling ethic by providing consumers the option of redeeming scrap commodities. Of course, in many areas, preexisting private sector, volunteer, and non profit programs may be providing satisfactory services.

Local

jurisdictions preparing regional plans should recognize these existing resources.

The 78th General Assembly revised the state grant program to insure that governmental agencies do not duplicate services already supplied by the private sector.

Specifically, grant funds are not available to purchase mechanical processing equipment or facilities if the same is already provided by the private sector for the relevant area.

The statute and implementing regulations require that an applicant describe why the desired equipment is not already available in the private sector. ADPC&E Regulation No. 11 identifies the current existence of such services as a factor to be weighed in the consideration of an application.

Without these limitations, governmental entities would have a competitive advantage over the private sector operator which must pay for its equipment without the help of government subsidies. An unfortunate result would occur if a government operated facility subsidized with tax payer funds displaced a private sector facility. The legislature and ADPC&E should remain cognizant of this issue in future legislative initiatives and in operating the grant program. The legislature may also wish to consider whether it would be useful to allow the private sector greater access to the grant program under specifically defined conditions.

2.

Flow control.

Our state, regional, and local governmental entities will devote increasing efforts to recovering scrap commodities from the municipal waste streams. The pursuit of this important objective should not be allowed to either suppress private competition or monopolize the control of recyclables.

A few local governments in other states are reaching beyond public interest requirements, e.g., waste management, to control materials and services usually considered to be private sector operations. In some cases, industrial or commercial establishments which generate scrap 1B ARKANSAS LAWYER

JULY 1992

materials are required to turn them over to a single entity authorized to receive them regardless of whether the owner of those materials might want to sell them or donate them to a charitable organization. Many organizations would be required to tum over valuable materials without compensation-the corner grocery store which had sold its recyclable corrugated boxes; the local newspaper which had sold its press overrun; and the local appliance dealer which had sold its obsolete appliances. This can discourage new entrance into the recycling field and drive existing recycling capacity out of business.

The Arkansas legislature has recognized this concern. Regional solid waste districts cannot prevent a facility generating or collecting recyclable materials from delivering them to a recycling facility of the generator or collector's choice. Future state, regional and local initiatives should continue to recognize the existence of such private sector relationships.

3. Recycling acquisition tax credits.

equipment

Legislatures use tax laws to change the ways citizens and businesses conduct their activities. The previously described state tax credit provided by Act 748 is intended to encourage the procurement of the equipment needed to separate, process, and utilize materials that would otherwise be discarded.

Specifically, this tax credit is intended to enable existing recycling facilities to begin recovering and processing recyclables with lower rates of returns such as plastics. Also, manufacturers might begin utilizing or expanding their use of recyclables as feedstocks if such materials are cost competitive and equally functional.

The ADPC&E recently issued the final regulations to implement this credit. The ADPC&E will be required to decide whether individual expenditures fit within the relevant definitions. This, of course, will place this regulatory agency in a somewhat unusual role. ADPC&E should interpret the relevant definitions

liberally to ensure that all types of legitimate recycling equipment expenditures are encompassed.

4. Liability concerns for the governmental recycling facility.

Cities, counties, and regional solid waste districts will begin recovering

an increasing amount of scrap commodities from their solid waste streams. Some governmental agencies may, in fact, attempt to develop facilities to process and market these recyclables after they are separated from the solid waste stream.

Governmental agencies establishing these types of facilities will hopefully have determined that such a service was not being provided by the private sector.

Attorneys representing or counseling governmental agencies constructing such facilities should first recognize that the ability to understand volatile scrap commodity markets is probably the primary key to success. Private sector recycling facilities have spent years acquiring the expertise to survive capricious markets.

Besides market volatility, those considering constructing and operating such a facility should acknowledge the possibility of incurring liabilities. Liabilities may include the failure of a facility to provide scrap commodities that meet the customers specifications.

Materials failing to meet the specifications could result in breach of contract claims. Without specific specifications, a processor or industrial consumer may attempt to argue the Uniform Commercial Code implied warranty of merchantability has been violated. For example, certain materials found in a municipal waste stream might contaminate packages or finished products made with the city or county's waste plastic or paper.

Maintaining quality control measures will be a difficult task. An unbelievable variety of contaminants are found in the solid waste stream.

Besides quality control problems, the failure to detect certain materials may result in a safety threat to the processor or industrial customer.

Consequently, a governrnental entity considering such a facility should develop and institute the necessary quality control procedures.

B. Distinguishing Between

Recyc/ables and Waste.

Certain federal and state environmental statutes and regulations may inadvertently harm the goal of increasing recycling with unnecessary regulatory requirements placed on the management of nonhazardous recovered materials such as paper, glass, plastic, and metals.

Likewise, the state and national recycling system will be disrupted if the interstate movement of these materials is impaired.

1. Applicability of statutory environmental programs to recyclables.

Recovered materials are valuable commodities, not wastes. Materials which have not been discarded, but have been diverted or separated from the solid waste stream for purposes of recycling should not be treated as waste. Unfortunately, both federal and state environmental statutory schemes may be broad enough in certain cases to encompass recyclables. Placing recyclables within such statutory schemes is neither logical nor fair.

Unlike a waste manager, the recycler must prod uce a prod uct which can meet strict industry specifications. The recycler faces competition not only from those in his or her industry, but also from producers of virgin materials which are readily available alternatives for his or her product. Any real or perceived liability issue related to recyclables will encourage the industrial consumer to choose the latter.

While regulation of air, water, and other discharges is both appropriate and necessary for collection and processing facilities, there is no environmental benefit served by the regulation under the Resource Conservation and Recovery Act or Arkansas Solid Waste Management Code commodities such as paper diverted from the waste stream for recycling purposes. There is simply no need for commodities such as

recovered paper to be subject to transportation, storage, processing, and related regulations. Nor is there any reason to subject recovered paper to regulations impacting solid waste or solid waste facilities.

The failure to distinguish between recyclables and waste could also impede recycling by subjecting the recycler to liability under the federal Comprehensive Environmental Response Compensation Liability Act ("CERCLA") or the Arkansas Remedial Action Trust Fund Act. The United States Department of Justice has, for example, filed CERCLA cost recovery actions against a number of metal recyclers that sold certain scrap commodities to a processing facility that has been designated a Superfund site. 2' A national recyclers trade association (ISRI) has filed an amicus brief arguing that scrap metal is a product or raw material that, when sold in commerce for the purpose of recycling, is analogous to any other product or raw material. Therefore, the metal recyclers were not arranging for the treatment or disposal of a "waste." Obviously, the facility that had supplied raw materials to the processing facility would not face liability under CERCLA for the customer's mismanagement of those materials.

The Arkansas legislature and ADPC&E should consider revising or interpreting the relevant state environmental statutes and regulations in a manner that addresses these concerns.

2. Ensuring the unimpaired movement of recyc/ables.

Various states, including Arkansas, have and continue to impair the movement of wastes across state lines. Without addressing the merits of such schemes, it is imperative to recognize that such enactments must not impede the free movement of recyclables across either regional, district, state, or county lines.

Dependable, quality supplies of recyclables are essential to the efficient operation of industrial users.

Very few, if any states have the type and number of industrial consumers to utilize the majority of the state's

scrap commodities. For example, the state of New Mexico does not have a steel mill, therefore, its scrap metals will move out of state in response to market demand. Conversely, the Nucor-Yamato (Blytheville) steel mill uses immense amounts of scrap metals, a great deal of which is received from out of state. Legislative initiatives or regulatory programs that impede the movement of these materials, even if accidently, could potentially disrupt a number of important industries that utilize recyclables.

C. Beverage Container Deposits.

The Arkansas legislature will probably once again consider beverage container deposits or bottle return legislation as an additional measure to attempt to expand recycling. Proponents of the initiatives argue they will reduce roadside litter and the amount of materials going into solid waste landfills. Conservation of energy and natural resources through the reuse of containers is stated to be an additional benefit.

Unfortunately, mandatory deposit programs can have a devastating effect on both the private sector and community recycling systems.

Mandatory deposits, of course, discriminate against the beverage industry. Forced deposits can actually harm recycling efforts by encouraging the use of difficult-to-recycle containers. Deposit laws divert those materials which have the highest intrinsic value from such systemsdenying them the primary resources necessary for continued viability.

Also, by placing an artificial value on beverage containers, and requiring retailers to handle returnables, markets for recyclables become skewed.

Private and public sector recyclers are not the only groups that fear bottle return legislation. Grocery retailers have traditionally opposed such programs because of the additional space and personnel needed to handle and store returnables. Grocery convenience stores and independent petroleum marketers are especially fearful since

their facilities are often severely limited in both size and personnel.

Unnecessary impacts on this segment of the retail sector is worrisome since it includes a multitude of small

businesses.

IV. CONCLUSION. Arkansas is at the forefront of state efforts to expand recycling. The legislative initiatives enacted by the 77th and 78th General Assemblies should stimulate additional recycling.

However, a recognition of the vital role that the private sector already plays is necessary to ensure that current programs and future legislative proposals do not impact this vital segment._

G.A. Tomlinson P.E. 8425 So. 73rd East Ave. Tulsa, OK 74133 (918) 252-1905

ENDNOTES 1. Solid Waste Strntcgies for the Natural State, Arkansas Solid Waste Fact Finding Task Force 2-2, (Oct. 1990).

2.

42 U.s.c. §§6941-6949(a).

3 40 C.F.R. §§ 257-260 (1990).

4.

Joh1l50n v. Sunray Services. l11C., 306 Ark. 497, 816 S.W.2d 582 (1991) (upholding Washington County ordinance prohibiting siting of landfills in certain areas).

5.

Proposed Policy to Prohibit The Development of Solid Waste Landfills Within The Outcrop Area of The BooneSt. Joe Aquifer, Arkansas Department of Pollution Control & Ecology (Draft Revision of the Arkansas Solid Waste Management Code) Jan. 16, 1992.

6.

See gCllerally, Kovacs, The Coming Era of Conservation and Industrial Utilization of Recyclable Materials, 15 Ecology L.Q. 537 (1988) (reviewing several states' recycling legislative initiatives).

7.

C. F. Bass, The Nature of the Serce Limani Glass, 26 J. Glass Studies 64-69 (1989).

8.

F.B.a. Harris, Recovery and Reuse of Natural Fibers, Industrial Recovery, 25(7) (1975).

9.

M. V. Melosi, Garba8e in the Cities Refuse, Reform and the Environment 1880-1980, Texas A&M Press, College Station (1981).

10. Development of Recycling Market>: Hearing Before the House of Representatives Comm. on Energy and Commerce 102nd Cong., 1st Sess. 284 (1991) (statement of ISRI).

11. Jd. at 505 (statement of the Aluminum Association, Inc.).

12. Id. at 492 (statement of Class Packaging Institute).

20 ARKANSAS LAWYER

13. (d. at 411 (stotement of the American Paper Institute). 42 U.s.c.§§ 6941-6949(a); 6951-6956.

15. Ark. Code Ann. §§ 8-6-701 to -723.

16. Ark. Code Ann. §8-6-606.

17. Ark. Code Ann. §8-6-720.

18. Ark. Code Ann. §§ 8-9-101 to -406.

19. Ark. Code Ann. §8-9-302.

20. Ark. Code Ann. §8-9-404.

21. Ark. Code Ann. § 1>-6-609(c)(2).

22. Ark. Code Ann. §§ 8-7-501 to -522.

23. Development of Recycling Markets: Hearing before the Subcomm. on Transportation of Hazardous Materials of the Comm. on Energy & Commerce, 102nd Cong., 1st Sess. (1991) (statement of

JULY 1992

Walter Wright and Ark Monroe are partners in the Little Rock law firm of Mitchell, Williams, Selig, Gates & Woodyard. They seroe as COll/lSei to the Arkansas Recyclers Association. an association of processors, brokers, and consl/mers of scrap metal, paper, glass and plastic. The viws of the al/thors do not necessarily represent those of any organization they are or have been associated with.

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IN

WILLIAM

S. WALKER

William Spurlock "Bill" Walker, 86, of Harrison died in March. He was the federal magistrate of the U.S. District Court in Harrison from 1971 until 1986 and also served as Municipal Judge for eight years.

Walker was a Major during World War II, and a member of 51. John's Episcopal Church. He was a 32nd Degree Mason and a charter member of the Harrison Elk Lodge.

Survivors include two sons, William S. Walker, Jr. of Diamond City and Dr. Charles O. Walker of Dallas, Texas; a sister, six grandchi Id ren, three grea tgrandchildren, and several nephews and nieces.

MEMORIAM

ROXANNE

T.

WILSON

Roxanne Tomhave Wilson, 45, of Little Rock died in April. Wilson was a partner in the law firm of Wilson, Engstrom, Corum & Dudley.

Wilson formerly taught criminal law at the University of Arkansas School of Law in Little Rock. She was a member of the Pulaski County, Arkansas and American Bar Associations, the American Association of Trial Lawyers and the Arkansas Association of Women Lawyers.

Survivors include her husband, attorney Wm. R. Wilson, Jr., a son, Marcus Lee Vowell; a stepdaughter, Beth Wilson; her parents, Alfred and Dorothea Dodge Tomhave and two brothers, Colonel Steve Tomhave and Richard Tomhave.

JEAN WOOLFOLK Dr. Jean Woolfolk, 71, of Little Rock died in April. She was a retired vice-president of the American Foundation Life Insurance Company, a member of the Arkansas Bar Association and the Arkansas Association of Women Lawyers.

Woolfolk was on the board of the Arkansas Arts Festival, Past President of the Little Rock Chamber Music Society and the University of Arkansas at Little Rock Alumni Association. She was also very active in the Christian Church.

Survivors include a brother, Alan Wright Woolfolk of San Jacinto, California, and a sister, Josephine Woolfolk Knowels of Little Rock.

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Discover the Administration Checklist which describes all the steps that might be involved in the administration 01 an estate, arranged in the order they are likely to be encountered. Place at your Iingertips a valuable guide to probate procedures. Take advantage of the references to both slate and federal statutes contained in the System.

Find out how the Master Information list (Mil) lunctions as a checklist for and "organizer" of all data pertaining to the decedent and his or her estate.

Determine Due Dates and Deadlines by using the method outlined in the System. Remember·· The leading cause of malpractice suits is missed deadlines. learn how to delegate routine tasks of estate administration to your paralegal or secretary.

WITH THIS ARKANSAS PROBATE SYSTEM, FLOPPY DISK WILL BE OFFERED IN AUGUST 1992. THESE DISKS CONTAIN THE PLEADING AND LETTER FORMS AS THEY APPEAR IN THE SYSTEM. For order information call Virginia Hardgrave a1375·4605 or 1·800·482·9406

Reeo .. g a First Bank customer isnt as hard as

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But theres one thing they all have in common - a feeling of satisfaction with the service they receive from us.

Thats because customer satisfaction is our top priority.

This satisfaction begins with the confidence you can feel in the proven performance of First Commercial. It includes the capability to enhance your personal financial security with complete financial services, including expert inves~ent

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22 ARKANSAS LAWYER

JULY 1992

II

YOUNG

LAWYERS'

SECTION

COLUMN

Lessons in Tolerance

By Lucinda McDaniel

On May 15, 1992, I was taught a lesson in tolerance. The lesson began with a video tape showing paper cutouts of children. Each child was somehow different one was black, one wore a Star of David, one was overweight, one sat in a wheelchair. In the background, childrens' voices spoke: "I wouldn't play with her because she was black. I didn't like him because he was a Jew. I thought she was ugly because she was fat. I was scared of his wheelchair." This was the springboard for lessons on tolerance developed by the American Bar Association Young Lawyers Division.

After showing the film to third graders, attorneys visiting classrooms discussed the importance of tolerating differences in appearance and beliefs. Some took five cans of foods with the outside wrappers removed. All five cans looked the same round, smooth, and silver. When asked which can of food they wanted to eat, the children responded they did not know

because they did not know what was inside. Exactly the point.

Other attorneys took two boxes.

One was filled with candy but wrapped in old newspaper and shoestrings. The other was filled with dirt but wrapped with bright, shiny paper and a big ribbon. When asked to choose which present they wanted, the children chose the pretty box and received the dirt. A second point was made.

In wee kl y cou rses over the next month, attorneys retu rned to classes to discuss the three R's: rights, responsibility, and respect.

Lessons focused on rights guaranteed by the first, thirteenth, fourteenth, and fifteenth amendments, as well as legal cases decided under those constitutional principles. Responsibility was taught through skits and scenarios requiring the children to make decisions based on the rights guaranteed by the Constitution. Respect was discussed through concepts of prejudice, described by the children as "being ugly" to

someone because they are different.

I was saddened to think that in America we wou Id have to teach our children tolerance. The concept seems so basic. From earliest times tolerance has been simply expressed in the Golden Rule: Do Unto Others As You Would Have Them Do Unto You. The Arkansas Young Lawyers Section, working with the Arkansas Department of Education and local schools, will explore the possibility of implementing this project in Arkansas schools in hopes of educating Arkansas youth on the legal rights of individuals and insuring that in our state tolerance will be practiced.

While watching the television coverage of the rioting in Los Angeles following the Rodney King verdict, a child asked his father, "Daddy, what country is that?" It is ours. A lesson in tolerance seems sorely needed, not only for school children but for adults as well.â&#x20AC;˘

LAW

OFFICE

TECHNOLOGY

REVIEW

PCLAWjr. to Automate Small Law Office

By Barry D. Bayer & Benjamin H. Cohen

Lawyers use computers for many things, but accounting (including time and billing) always vies with word processing for top priori ty. In this column, we review PCLAWjr., an integrated accounting program specifically designed for the small law office.

PCLAWjr. PCLAWjr., a five timekeeper subset of the venerable Canadian PCLaw accounting package, integrates law office general ledger, receivables, check writing and time and billing, and even prints mortgage amortization schedules. We are informed that the program is the same as PC LAW, except that the latter has a no frills docket program and modules for payables, bank reconciliation and payroll.

Installation, Documentation & Support PCLAWjr. files took more than 3.6 megabytes on our hard disk. To complete installation we had to make a toll free call for a password to unlock the program. We could then select our own password to control access to the program.

A detailed 425 page manual includes both table of contents and index.

Although most of the information we needed was there, it was sometimes difficult to find and sometimes difficult to understand. A 120 page tutorial takes the new user through the program's functions from set up, to time and data entry, billing 24 ARKANSAS LAWYER

JULY 1992

trial balances and profit and loss statements. The tutorial lets the new user build a test database before using a RESET fu nction to erase a II data, and begin work for real.

Knowledgeable toll free telephone support is available from 8:3Q a.m. to 5:30 p.m., Eastern time, Monday through Friday. After hours and weekend support is available on a call back basis. The publisher tells us that support is free for 30 days after purchase and $2.00 per minute thereafter, although it has not yet started to charge the fee.

Using PCLAWjr. The user's first tasks are to select an accounting method (cash, modified cash, or accrual) and make appropriate additions to the program's basic Chart of Accounts.

Obviously, the firm's accountant should make these decisions.

Next, add a group of "time codes" and "explanation codes," used to claSSify mailers, time records, receipts and disbursements. n,e program was often not what we expected. Even experienced computer users should resist the impulse to ignore the manual and work through the tutorial, instead.

'Time codes," for example, turn out to be "type of law" codes (civil litigation, real estate, intellectual property) used to categorize matters. PCLAWjr. uses "explanation codes" to describe time and expense entries (trial, research, photocopies, filing fees) and receipts

and disbursements (client pay bill, client pay retainer, settlement payment).

We next wished to enter a group of clients. PCLAWjr. wouldn't let us do it that way, but instead required that we enter a matter first, and then let us enter information about that maller's client. We moved to the "Open Maller" module, entered information about a new maller, including Time Code, description, responsible allorney, and fee classification. We ignored a field called "file location," but added standard identification information about the client. A second screen let us set various billing options for the matter; when we opened a second matter for the same client, we could copy the client information to the second matter without retyping. A third screen requested information about oppOSing party and counsel, and a fourth screen asked how revenue for the mailer is to be credited among the firm's various attorneys.

The database design generally makes sense, bu t there is no "responsible attorney" for the client; in the PCLAWjr. system, only matters have responsible attorneys. There are workarounds, but there is no direct way to which attorneys "own" which clients. Similarly, there's no good way to group related clients.

After we opened a matter, we could enter time information,

including long (the publisher claims "unlimited") description of the work done. We were disappointed to see the program splilling words between lines, ra ther than mov ing the uncompleted word to the next line.

The telephone support person promised uS that the word would not be split on the bill; she was correct.

We continued, entering receipts to and disbursements from trust and general bank accounts, reporting on work in process by attorney and client, preparing draft and actual bills, and even writing checks. We didn't have laser printer checks, but the dummy vouchers we printed looked good. Once we got the hang of PCLAWjr.'s style, we had a few problems.

Finally, we moved to end of month procedures, generating a trial balance, general ledger, p&l balance sheet, although we think most firms leave such mailers to an accountant.

The Interface PCLAWjr.'s main menu displayed a modern looking screen with menu bar across the top and pull-down menus for the program's major functions. Menu choices may be made by scrolling down to the desired choice or by pressing a highlighted leller. Some menu choices have the same first letter; the programmer solved the problem by highlighting interior letters in such cases. We didn't find it particularly intuitive to press "0" for "Correct Time Entry," "i" for a "List" of clients, "v" for a list of receivables sorted by client and "w" for a list of receivables sorted by lawyer.

The program's modules were mostly command driven; command options were often indicated on screen. Not only were the modules not consistent with the main program, they weren't consistent with each other. Exiting a module to retum to the main menu, for example, might require entry of "e" "en" or "end."

Although the manual claims that "Whenever PCLAWjr. asks you if you want a printout you can answer yes or no or you can tell the system which printer number you want to use,"

sometimes entering a printer number generated an error message claiming that only letters could be entered.

We liked the way pressing Fl when the cursor is in a data entry field usually results in either a help screen or a list of possible choices. In the time entry module's "matter field," for example, Fl pops up a list of client/matter combinations, alphabetized by client name. As we typed the beginning of a matter name, the cursor moved to the corresponding section of the list; when we pressed ENTER, it copied the information into the correct field.

It seems as if PCLAWjr. is in transition from a 1980s interface to a more modern and easier to use approach. We hope the transition is soon completed.

Reports PCLAWjr. produces a series of reports including journals for the firm's various bank accounts, reports of client trusts, summaries, work in progress and client list, receivables by client and lawyer, and "productivity" reports of collections, bi II ings and time. Most reports can be printed or saved to disk. Some reports require type that can fit 132 columns across an 81 /2 inch page; 17 pitch fonts, available on most laser and dot matrix printers, work. If you install one of the 26 supported printers, it will automatically switch to small type when needed. Specific clients, matters or attorneys can be selected, but report formats cannot be customized.

Client bill formats can be customized, although we found it tedious to move the various bill elements around until they were in exactly the correct spot with exactly the desired information. As you can reuse any format yOll create, however, you shouldn't have to go through the pain very often.

Detail On Line the various We checked accounting reports with a CPA; although the reports seemed adequate, the accountant raised a major objection to the program's requirement that general ledger detail be purged from the computer at the

end of each month. This procedure might have been acceptable when disk space when disk space was limited and expensive, but modern practice is to keep all detail "on line" at least until the accounting "year" is closed.

Value PCLAWjr., with its time and billing, receivables, general ledger, trust accounting and check writing, provides a lot of power for its $500.

You won't need the $350 five user network option (not tested) if you don't have a wired network, but you can purchase a $125 "satellite" data entry module (not tested) to enter time information on another computer or program, and use a floppy disk-based "sneakernet" to automatically incorporate the data into the PCLAWjr. database.

PCLAWjr. does not encourage contemporaneous time entry by the lawyer; we prefer programs, such as Timeslips, that do. But particularly if you wouldn't dream of doing your own time entry, anyhow, PCLAWjr. remains a good value. Add a good docket program, and your small law office will be "in business."

Summary PCLAWjr. is a capable time and billing package with accounting and check writing for firms with one to five timekeepers. The program is being rewritten, but even in transition from an 80s to a 90s interface, PCLAWjr. works well. We consider the program good value for a small law office.

Details PCLAWjr., Version 2.0 dated December 11, 1991. Requires roM PC or compatible, 420 kilobytes available memory, MS-DOS 3.3 or higher.

Stand-alone: $495.00. Five User Network Version (not tested); $845.00.

Satellite data entry module (not tested), $125.00. Alumni Computer Group, Inc., Suite 722, 155 N. Michigan Avenue, Chicago, Illinois 60601. Phone: (800) 387-9785 or (312) 856-1122. Fax: (416) 292-1638. â&#x20AC;˘ Barry D. Bayer and Benjamin H. Cohen are attoTfleys in the Chicago area. They write "Law Office Technology Review" for several legal publiCJltions nationwide.

JOHN P. GILL: THE MAN WITH A PLAN, REALLY

By Paige Beavers Markman

ohn Purifoy Gill of Little Rock took office as President of the Arkansas Bar Association on June 13, 1992. People surrounding him say he is organized, efficient - that's an understatement. His whole life lawyering, collecting Arkansasiania (memorabilia from or regarding Arkansas), gardening, writing and community work, is all organized to a tee. Gill Wallace Clayton Fleming Elrod & Green, the law firm he leads, is ready for Gill to be President of the Arkansas Bar Association. If you've worked with Gill at all, you know Desi Gipson, his secretary/ right arm.

Desi assures us that he has been at work for over a year now preparing for his year at the helm.

BACKGROUND John Purifoy Gill was born in Fort Smith, Arkansas but moved at six weeks of age because his father, the branch manager for Armour & Company, was transferred to Little Rock. His mother was a school teacher who Gill says taught most of the kids in Little Rock. His father eventually was in the insurance and real estate management business.

Gill attended Little Rock Schools 26 ARKANSAS LAWYER

JULY 1992

beginning at Fair Park Elementary, the school from which he now lives up the street. (He says he lives "only four blocks from the house I lived in when I started school, proof positive I haven't gotten very far in life.") He was in the first graduating class from Little Rock Central High.

Gill went on to Hendrix College in Conway, but was awarded a NROTC Scholarship to Vanderbilt in Nashville, Tennessee, after his second year. During his sophomore year at Hendrix he says "Some of us decided we missed Little Rock, so went drove down here and were hanging around the halls at Central High watching the girls go by, and a pretty girl walked by me. I asked a friend who she was and she said 'That's Marjem Jackson: and I said I'd like to have a date with her." Marjem Jackson became Marjem Jackson Gill ten days after Gill graduated from law school. Gill, who was reportedly the first person in the United States to enter Law School on a NROTC Scholarship, says he went because "My dad thought it was a good idea."

After finishing law school, Gill entered the Marine Corps as an officer. Gill served in Quantico, Virginia, for three years and then returned to Little Rock to practice law. He remained in the Marine Corps Reserves for 24 more years. He began his law career as Assistant Attorney General, a job he held for two years before going into private practice.

PROFESSIONAL & PERSONAL LIFE Gill says he's a General Practitioner though he admits that there isn't really such a thing these days. Most of his work is in corporate litigation. He does a great deal of complex litigation from the defendant and plaintiff sides and also plays a role in advising corporate boards on legal issues. He recently won an award for trying the "Crater of Diamonds" case about the diamond mines in Arkansas, demonstrating his acumen in environmental law, a growing field in Arkansas and in the nation as well. He says growing up in Arkansas made it easy for him to try the case pro bono. The issue to Gill was Arkansas' self image. He felt that digging a lake out of one of our claims to fame - the Diamond Mines - would not be a positive thing for Arkansans to look back on. "In a lot of ways I think Arkansas has been treated as a third-world type state in that our resources are taken out and value added in other places,

which would have been the case with the diamonds. The wealth is being taken out of this state, and 1 want to help stop that any way 1 can." Gill feels that Arkansas' self image has always been an uneccessary liability for us, he doesn't think there is any reason for us to have the self image we do.

"We have wonderful things in Arkansas, we shouldn't ever have to apologize to anyone."

Gill has also enjoyed handling bond issues. He says that part of his due diligence involves researching the community or area which has afforded him one of his favorite pastimes - learning about Arkansas.

Gill's collection of Arkansasiania is truly amazing. At his home in

John Gill works in his office on thd8th floor ofthe TCBYTower with his secretary/right hand woman, Desi Gipson. the Little Rock Heights area, enjoys. "I don't go out and search for things like 1 used to. you can see his collection of Arkansas woodcarvings. All Now if 1 hear of something, I'll go take a look at it." Gill is the pieces are crea ted by Arkansas artists, most subjects still searching for three 'hird's being Arkansas - related in eye views' of Arkansas, one of Little Rock, one of Fort Smith one way or another. He also owns the largest collection of and one of Texarkana.

Arkansas maps with the Unlike many lawyers, Gill exception of that of the Library does not golf. "It takes too much time," he says. "I prefer of Congress.

His Arkansas Trout Stamps, to play tennis, and 1 do quite a Duck Prints, currency, bit of gardening." Gardening Audubon prints, Courier he does. His home boasts & Ives Prints and beautiful landscaping and a collections of Arkansas rose garden surrounding the explorers' journals and hot tub they added a few years writings is unrivaled. He ago. also has examples of Watching John and Marjem Gill together is truly a joy, pottery of each of the Arkansas Indian cultures.

They are a couple who have been and still are partners in Why does he collect all of this? He says he their goals and everyday lives. started collecting ArkanTotally devoted to one sasiania when he was in another, they ask each other's the service, "because I advice on everything. Gill missed home."

The helps Marjem with her garden club; she helps him with his interest grew into a hobby collecting. They laugh at each Gillpictured with afew pieces ofhis vast that he has vigorously co/kerion ofArkamasainia. other; they jostle with each pursued and thoroughly

28 ARKANSAS LAWYER

JULY 1992

other; as a matter of fact, they act like a couple of kids. The couple has three children: Elizabeth, 26, who is married and living in Washington, D.C. working for Fannie Mae, the Mortgage Banker; Ward, 25, who is a First Lieutenant in the Marine Corps stationed at Camp Pendleton, California; and David, 22, a recent graduate of Hendrix who is now working for Snider Telecommunications in Little Rock; Family means a great deal to John and Marjem, obvious through their excitement at the coming weekend when all the children would be home for a wedding.

They were scurrying around, making arrangements to make sure everyone would be happy and taken care of.

GILL AND THE ARKANSAS BAR ASSOCIATION John Gill says that one of the reasons he wanted to be President is to try to highlight professionalism among lawyers in our state. He says his feelings about professionalism come from his time at Vanderbilt. "They made it an integral part of the curriculum. You knew you were there to learn how to help people," says Gill.

He wants lawyers to feel proud of their profession. "Too many lawyers have always heard Shakespeare quoted saying 'First, we kill all the lawyers; [King Henry IV) and they think it means something bad. Actually, in context what he was saying was that to be

John & Marjem Gill in the gardens surrounding their home in Little Rock.

able to take over the government, you must first get rid of the lawyers because they are the protectors of freedom. A lot of the young lawyers think it's only important to win that's baloney - it's only important to protect anothers' freedom," says Gill.

His plan for the Bar year is complete, concise and well thought out. "This plan is not defensive, it's offensive. I didn't spend 27 years in the

Marine Corps learning to retreat," says Gill.

The 'plan' came to the Bar Center in the form of approximately 30 typed pages.

The goals and missions are laid out by priority; commentary comes before and after.

This would be a good example of what you need if you ever hire someone to analyze your firm and make management suggestions. After reading the plan, I highly recommend

Quite an accomplishedgardener, Gill has plAnted and caredfor all ofthe rou bushes and plAnts in the gardens at his home.

of its handbooks and systems.

II. The Legal Profession.

Priorities under this category include mandatory periodic professionalism courses for all attorneys, requiring 1 hour CLE on ethics each year, moni to ring Professional Conduct Committee efficiency and having an audited verification of Lawyer Trust Accounts. There would also be a public service program on the neccessity for obeying the law as a citizen's first duty, a revision of the code of professionalism and the establishment of legal advertising guidelines.

III. Unfinished Business - Modernization of the Arkansas Judicial System. Gill says we need state funding of the judicial system, non-partisan election of judges and John &- Marj~m GilJ in th~ gardens at th~ criminal procedure Courthous~ in Littk Rock. Marj= s reform. He wants to look Garden Club In-v~J as th~ caruaku at judicial campaign ofth~rom. financing, judicial redistricting and compensation. ration and revamping the IV. Bar Organiza hon. referral fee ethics to encourage referrals. Also, the Young Establishing a permanent hot line for disaster/emergency Lawyers Section would be relief is a priority along with responsible for writing a an In House Counsel Section.

Consumer Law Handbook.

Gill would like to see a Harold There would be an expansion Flowers Section and a Women of AMI for all routine tort cases and the development of Lawyers Section. He wants to value billing. The Association expand Bar Associa tion office would publish annual updates space, develop a Trial

John Gill should you ever need this service.

Highlights of his priorities include: 1. Facilitating the Practice of Law. This will include developing an advisory ethics opinion program, beginning a rnentoring program for young lawyers, fee dispute arbit-

30 ARKANSAS LAWYER

JULY 1992

Notebook and a yearly calendar. The Association staff will use recycled paper and serve health food at luncheon meetings, do extensive promotions on form books, insurance and other Bar services.

A principal thrust of his emphasis is developing young lawyers in the profession, a matter on which he has already begun work.

Some of these things will take legislation, others will take Supreme Court Rule. A lot of these things will take the hard work and cooperation of all Arkansas attorneys. I had to ask John Gill, "Don't you think you've set some lofty goals? Are you trying to set the world on fire?" His answer, typical John Gill, was "if you aren't going to set high goals, why try? We may not get everything done, but at least we have a plan and we can say we did our best isn't that all that matters?"

Yes, I guess it is.

So, lawyers of Arkansas, get ready. The man with a plan has taken office, he's ready to work and looking for action.

And I don't think anything or anyone is going to stop him from making improvements that are long overdue.

Editor's Note: A special thanks to john Gill for letting my photographer and me into their home and office, and for weathering the heat while we shot and reshot photos. They were tmly a pleasure to work witho & Marjem

LAW,

LITERATURE

&

LAUGHTER

Seeking Divine Relief from the Fracas, IIlllll Receives Admonishment & Golf Poetry

By Victor A. Fleming

As the competition continues - to ascertain whether testimony, pleadings, or opinions are more entertaining - "lll" has been reprimanded, chastised, held in contempt. Of last issue's focus on a classic complainant "from Sebastian Chancery," the author thereof, 12th District Chancellor Chas. R. Garner, wrote: "You have me in the wrong court. [Allienation of affection suits were tried in Circuit Court by juries and that's where my Complaint was filed." I also failed to point out that Judge Garner won the case and collected.

But does he have his ClE hours?

David Solomon sent a pro Sf answer from a Phillips County case: "The Defendant ...by his attorney, Jesus Christ, for his cause of reaction, ... states," among other things, that "During the marriage of the parties the Defendant has loved the Plaintiff" and "The Defendant has pardoned the Plaintiff.

WHEREFORE, Defendant ... prays that he be not granted an absolute divorce from Plaintiff ... and all other relief to which he may not be entitled .. ./s/ [Defendant's signature], Candidate for Justice, Spokesman for his Attorney." David wonders if defense counsel is licensed to practice law in Arkansas, particularly in Phillips

County.

Speaking of relief ...

Maudine Day, court reporter in Pulaski Chancery, transcribed the following: "ATTORNEY: This is the third time we've been here to get a final divorce and hopefully we will be able to finish it today.

"COURT: Why couldn't we get one the other times? " ATTORNEY: Mrs. [Xl has not been here both times. I think one time she couldn't get a ride and ... the other time her attorney had to relieve himself."

Disorder in the Court was the title of a collection of under-oath exchanges sent by Chris and Ta mmy Foreman, process server and court reporter, of North Little Rock. It includes: "Q: What is your brother-in-Iaw's name?

"A: Ilorofkin.

"Q. What is his first name?

"A: I can't remember ... I'm too excited. (Rising from the witness chair and pointing to Mr. Ilorofkin) Nathan, for God's sake tell them your first name!" And: "Q: James stood back and shot Tommy lee?

II

A: Yes.

"Q: And then Tommy Lee pulled

out his gun and shot James in the fracas?

"A: (After a hesitation) No, sir.

Just above it."

Also this one, which I nominate for the "Question of the Year" award (which last year went to the lawyer who, after a woman testified she was Mr. Bailey's mother, asked"And you have been all his life?"): "Q: Mrs. Smith, do you believe that you are emotionally unstable?

"A: I used to be.

"Q: How many times have you committed suicide?"

Either/or, but sure about the paycheck.

Dick Downing of Little Rock sent me a depo excerpt that he says makes him laugh every time he reads it.

Here are a couple of highlights: "Q: Give me the benefit of your educational background ...

"A: I started at Bruno in '41, finished in '54. I stayed back in fourth grade with a friend of mine.

We were buddies, and he begged me to stay back, or I would have finished in'53 .. .

"Q: How are you employed?

"A: Ranger Boat, or Wood Manufacturing, you can go either way ... [T]he products come to them in either name ... They answer to either, but I'd say Ranger Boat.

"Q: Who signs your paycheck, Ranger Boat or Wood Manufacturing?

"A: Randy Hopper signs my paycheck."

Poetic Conclusion Then there's a recent letter from Hugh Ha rrison, Jr., of Jonesboro: poet, lawyer and Perennial Coordinator of the FourMan Coif Tourney at Annual Meeting in Hot Springs (for which he is Truly Appreciated!). As this event has increased in popularity, so has the amount of time required to play 18 holes of golf (exponentially). I suggested the tourney be played with two teams per group, rather than one, alleging this would encourage fellowship, discourage fudging, and take less time. Hugh responded: There should be more fellows (and fellowship) on the teeAnd eight can count the strokes better than you or me.

But now that you have d check on the score, Could you be wrong about less time than more?

Score at the end of round 4: Testimony 10; pleadings 7; opinions (including Judge Carner's letter) 3; poems from tournament chairs 1..

FROM THE AUTHOR OF REAL LA WYERS Do CHANGE THEIR BRIEFS comes

Law, Literature & Laughter

(herein reJened to as "LLL")

By Victor

Is it legal to kill suck-egg dogs?

A.

Fleming C

liS

Were commodes made to stand on?

Is cow manure real estate?

Legally, what is a "hillbilly"?

Get the answers to these and other pressing legal issues in

UL.

To order, mail this form to VAF Enterprises, 5405 Sherwood, Little Rock AR 72207.

----------------------------------------------------------------Send me copies of LLL. I enclose $ } (books X $6, + $2 post/hand for up to 5). Mail to:}

--------------} --------------} --------------}

© 1992 by Victor A. Reming

LAWYERS' MART FOR SALE: Ark. Reports. Vols. 1-2S4.

5S5O. Call 53ll-3233 or 53ll-3S79.

FOR SALE: Arkansas Code Annotated, Complete, Up-to·date, Price $577.00 per set, if picked up at ou r officei otherwise, add cost of transportation. The offer does not include the Court Rules Volume but does include the index volumes.

Daily, West, Core, Co(fman & Canfield, P. O. Box 1446, Fort Smith, AR 72902,782-<l361.

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"SpilTech Services produced for us a thorough quality report which mare than sahsfied ourreqUiremenfs. I wassimllarlympressedwith theirefficiency as the report was generated with only a few days notice. "

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JULY 1992

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GIves Meaning to the Numbers

Attorneys know the law, accountants know their numbers, and when a case in litigation involves complex accounting, tax and financial issues, you bring in a CPA to "make sense of the numbers~' That's where BKD can help your case. 'lake a recent business dissolution case, for example. We objectively determined the value of the business in question, then testified about the tax consequences, the company's fair value and the independence of the parties involved.

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e 521-5650

Little Rock 372-1040

Fort Smith 452-1040

Pine Bluff 534-9172

Much has been written about the _ follows: revocable trust - the "living" trust ."". ............. (b) In determining actual intent now so avidly embraced that , ~ under subdivision (a) (1) of this chents are beginning to regard, section, consideration may be a suggestion of a will as a given, among other factors, sign of senility, if not ~ , a s to whether: complete incompetence.

(1) The Does the "living '< ~ transfer or obligation trust" have value? Of b....: ,--~ \ was to an insider; course it is a ~'\ ~ (2) The valuable and ~ ~ debtor retained accredited tool in .~ ~ \ possession or the field of estate, ~. ~ control of the planning. But it is property transnot the panacea for , fer red after the all ills; and it • transfer; certainly does not \ • ( 3 ) The save a penny in ~ transfer or obligestate or income ~ ~ ation was disclosed taxes (assuming that \ • ,. .' ~ or concealed; self-same trust is 'Y incorpurated instead (5) The transfer was of in a will), althOUgh, ~r ~ substantially all of the some over-ardent ~ i debtor's assets; supporters seem to imply....... that it does. "' '\.. \.

A.CA. §4-59-209(a) provides However, it is not the purpose ....... ~ such a transfer may be attacked of this article to weigh the ~ ~ within four years after the transfer advantages and disadvantages of a -- _ ~ was made or one year after the will versus the living trust. It is its transfer was or reasonably could have purpose to note some of the problems been made. been discovered, whichever is later. which may arise in connection with Clearly, the personal represenThus, substantial remedies are the use of revocable trusts, and to tative of a deceased grantor who has available to creditors. Yet, should the indicate the desirability of possible made a fraudulent conveyance may enforcement of a creditor's claim legislative assistance with reference attack it for the benefit of the creditors depend on the uncertain thereto. These problems are of a decedent's estate, A.CA. §28-49- determination by a court of such particularly accentuated in Arkansas 109. factual issues when, in probate, had where there is little or no statutory or Further, the recently enacted there been no revocable trust, all the judicial authority to guide us in the Arkansas Fraudulent Transfer Act, creditor need show is that he is a use of these will substitutes.

A.c.A. §§4-59-201 to 212, has clarified creditor? In short, the existence or THE RIGHTS OF A and extended rights of creditors to enlargement of remedies of CREDITOR SHOULD NOT BE attack fraudulent transfers. To go defrauded creditors in the fraudulent into detail with reference thereto conveyance area is really beside the IMPAIRED BY A REVOCABLE TRUST. would unduly extend this article. We point. Assets of a decedent which Although the modern view is that, do point out that a transfer can be have been placed in a revocable trust on death of a settlor of a revocable attacked by even a creditor whose should be just as subject to reach by trust, his creditors may reach such claim arose subsequent to a transfer his creditors as if he has not done so. property,' the older and more made" ... with actual intent to In addition, the trustee of a established rule is that they may not. 2 hinder, delay or defraud any creditor revocable trust which has become In any event, in the absence of a of the debtor ..." (A.c.A. §4-59-204). irrevocable should be able to know, statute or decision of the particular More importantly, subsection (b) of without a shred of uncertainty, when jurisdiction involved, the answer is A.CA. §4-59-204 provides in part as he may make distributions free of uncertain and it should not be. A claims by creditors. creditor whose debtor has placed Although it has been indicated substantially all of his assets in a such a trustee "apparently" has no revocable trust prior to his death personal liability for distributions should be just as capable of obtaining made prior to claims by creditors (1 satisfaction as if the transfer had not A. James Casner, Estate Planning 327

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34 ARKANSAS LAWYER

JULY 1992

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[4th ed. 1980)), he should have some

specific guidelines as to when he may make the permissible distributions to the beneficiaries of the trust. Under current Arkansas law, such a trustee should understandably be wary of making distributions, particularly when the trust was created within the four-year period above referred to, or even later if not rea onably discoverable before then. Indeed, if our courts would follow the Restatement (Second) of Property3a not unlikely result - c~editors could reach back even further. the other hand,,if the trustee kn ws that unpaid creditors wH have fled claims against the probat esta are entitled additionally to bave ourse against the trust assets, he knows exactly where he is, so that statutes enlarging the rights of creditors actually make the administration of the trust estate more efficient. Such a trustee would be equally protected by a statute allowing direct action against the trust.

Suggested Statutory Solutions California has an excellent statute, very simply providing: NCalifornia Civil Code" ยง18200. Revocable trusts; creditors' rights during settlor's lifetime If the settlor retains the power to revoke the trust in whole or in pa t, the

trust property is subject 10 the claimS of creditors of the settlor to the extent of the power of revocation during the lifetime 0 the settlor (Added by 5tatsJ986, c.820, ยง40, operative July ,1987). ยง18201. Creditors' Ighls after settlor's death Upon the death of a settlor' wljo had reta ined the power to revoke the trust in whole or in part, the property that was subject to the power of revocation at the

time of the settlor's death is subject to the claims of creditors of the decedent settlor's estate and to the expenses of administration of the estate to the extent

that the decedent settlor's estate is inadequate to satisfy those claims and expenses (Added by 5tats.1986, c.820,

ยง40, operative July 1, 1987).

Michigan similarly provides: 556.128. Unqualified power of revocation, reservation by grantor; effect on creditors and purchasers Sec. 18. When the grantor in a

conveyance reserves to himself an unqualified power of revocation, he is thereafter deemed still to be the absolute owner of the est.:1te conveyed, so far as the rights of his creditors and purchasers are concerned. If the grantor dies without exercising such power, the executor or other legal representative of the grantor

may reach the estate conveyed on behalf of any creditor Whose c10im hos been filed and allowed in the grantor's probate estote but not paid because the ossets of tHe.. probate estate are insufficient to satisfy his claim. This section shall not confer upon the executor or other legal

resESltative of the grontor the right to obtam on behalf of creditors any of the proceeds of life insurance policies or other distributions from qualified pension,

profit sharing and stock bonus pions that might be payable as a result of the death of the grantor.

Either version seems acceptable in theory in that each affords a definite cut-off point by specifically requiring creditors first to file claims in probate court, although we are reincarnating the probate court again thereby. We assume a statute could also be constructed allowing direct claims against a trustee within a prescribed time limit after notice by the trustee.

11. THE RIGHTS OF A SPOUSE SHOULD NOT BE IMPAIRED BY A REVOCABLE TRUST. To simplify and avoid questions of inchoate dower and curtesy, assume our decedent only has personal property, it is all separate property, and it is worth one million dollars.

Prior to his death, our decedent transferred all of his personal property to a revocable trust, income retained by the him. The trust makes no provision for the grantor's wife.

- Obviously, if no such trust had been established, the surviving spouse would be entitled to a 'stributive share of decedent's estate provided by our statutes.

Although such trusts may be socalled "illusory" trusts, void as to the wife,' particularly if created shortly before death? whether the wife can elect against such a "will substitute" is, at least, uncertain, and, again, it should not be.

True, the cases from other jurisdictions seem particularly to

favor the spouse where the decedent retains both the rights to revoke and the income. 6 Vet, why should a spouse be compelled to establish fraud, or even engage in litigation, to procure that what was clearly hers or his if the trust had not been established?

It sh uld be emphasized that we are not Dein about a trust which was made irrel1 cable during life, which mayor may no all on either side of the rul abov eferred to. The "irrevOCflble" trust w re referring to is one that onl becom irrevocable on the death 'If e settlor.

Similarly, e do not con nd that a sp use should have any p rticular share or portio fad eased spouse( estate. at we do claim is that, once egislative policy fixes a certain po tion 0 decedent's property as ongin to a survivmg spouse, that rtion should neve be able to be d feated t e simple expediency of a "livi{) trust."

Suggested StatU ory Soluti n A Pennsyl ania statu e on t e subject (Penn. Annot Statut s, Title 20, ยง30 . 1) prevI es tha revocable trust shaU, t the election of the spouse be.. tte ted as a testamentary, is sition.

This se IDS 0 simple nd sound solution, it possibl an addition 1 provision that uch election would not exist if consented to in writin t the time of ere tion of the trust, preferably in a controlled environment similar to that required of a Rre-ma ital agree 111. TH fGHTS OF A PR TER IlTED HILD S O D NO B IMPAIRED BV";. REVO BLE TRUST. If a ttJor dies without a will but, througH the medium of a revocable trust, leaves substantially all of his property to a spouse or a third person without mention of a child or grandchild, should It be free from attack? The answer should be automatic.

If the state policy (as it is in Arkansas and most states) Is not to permit disinheritance without "mention" of the disinherited child (or descendant of a deceased child), the same rule should apply as to a

revocable trust constituting a will substitute.

An intriguing albeit unlikely side question occurs: suppose the child is not mentioned in a will but is mentioned in the revocable trust?

Suggested Statutory Solution Again, the answer is obvious and the solution easy. A.CA. §28-39-407, which provides that children or issue of a deceased child not mentioned, specifically or as a class, may take the share they would have taken as if the decedent died intestate, could provide that a child or issue of a deceased child not mentioned either in a decedent's will or such a revocable trust shall be entitled to his proper share thereof.

CONCLUSIO No witnesses - a fundamental

This is not so where a third p<lrty creates

the general power. 62 Am.jur.2d Powers,§2S0; Res. (Second) of Property, 13.4.

2 Res. (Second) of Trusts §330 Comment (0) 1959.

3 Note 1, supra. See also Halliburton Co. v. OW", Family Trust. 28 Ark. App. 314 (1989).

4 Annotation: 39 ALR. 3d 14, Validit)' of Inter Vivos Trusts established by one spouse which impairs the other spouse's distributive shares or other statutory rights.

5 Annotation, Gift or Other Valuable Transfer by Husband as Fraud on Wife, 49 ALR2d 524, 546 (1956).

6 Newnum v. Dore (1937), 275 N.Y. 371, 9 N.E.2d 966 (revocable trust); Beirne v.

Continental-Equitable Title Ca" 307 Pa. 570, 161A 721 (1972).

Leonard Scali and Steve Balllllan are requirement for a will are required partners at the law firlll of Eichenballm, for a "living trust." Prom that SCali, Miller, Liles & Heister in Litt/e viewpoint, a revocable trust is easier Rock. Mr. SCali earned his IIndergradllate to establish than a will, and probably degree from Vanderbilt University and just as difficult to overturn, and, some his I. D. from Harvard University. Mr. say, more so. Why should basic and Ball/nan received his B. A. and {. D. from fundamental rights be able to be TlIlane Unversity and a LLM in Taxation placed in jeopardy by the simple from New York University. expedient of a "living trust"? With some relatively simple legislative assistance, such fundamental rights can be preserved and we can know the rules of the game.

By some estimates, half of the estate planning documents today involve the use of a revocable trust.

Arguably, that means that fifty percent of the time lawyers cannot advise their clients confidently about such fundamental issues as those discussed in this article. _

Please Note: The UAlR law library will be open at 400 W. Markham until July 31st, but will be completely closed from August 1 through August 16.

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END OTES 1 Because the power of revocation is treated as in effect a reservation of a general power of appointment,

Restatement (Second) of Property (Donative Transfer) §13.3 (1984); State St. Balik and Trust Company v. Reiser, 7 Mass.

App. Ct. 633, 389 N.E.2d 768 (1979). The great weight of authority, where the settlor himself has reserved a general

power of appointment, is that his creditors can reach it whether he exercises the power or not, '57 Harv.L.Rev. 362, 364 (1944); Res. (Second) of Property §13.3.

36

ARKANSAS LAWYER

JULY 1992

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INTRODUCTION If the question "What are

the three most pressing problems with our judicial system?" had been asked of Arkansas lawyers during calendar year 1990, it is quite likely that one of the most common responses would have been "campaign financing and the election of judges." With the largest group of candidates in the history of the state seeking judicial office, lawyers complained that they were being called upon in great numbers and with great frequency to get involved either through financial contributions or other types of political support. Lawyers responded to the problem with calls for both constitutional change in the method of selecting judges and statutory limits on campnign practices. During the 1991 session of the Arkansas Ceneral Assembly, the Arka n5.:1S Ba r Associa tion presented its plan for a new judicial article for the Arkansas constitution. 1 One of the main components of the proposal was a change in the selection of appellate judges from an elective system to a merit plan. 2 During the months preceding the legislative session members of the ABA had engaged in lengthy debate over the judicial selection issue with one group supporting merit selection for all judges - trial and appellate - and another group in favor of retaining the elective system. While the final proposal was a compromise solution, during the debate, both sides conceded the "fact" that judicial campaigns cost a lot of money and lawyers provide most of that money. Legislation was also introduced during the session which was intended to deal with this "problem."

Representative Mike Wilson, a lawyer from Jacksonville and the Vice Chairman of the House judiciary Committee, introduced two bills. The first would have required all judges to run in non-partisan elections 3 and the second would have made illegal all political contributions from attomeys in judicial elections.â&#x20AC;˘ While l

l

ARKANSAS' METHOD OF JUDICIAL SELECTION Arkansas' present constitution provides for direct election of all of its judges. 6 judicial positions consist of seven Supreme Court Justices who run in statewide elections for an eight-year term, six Court of Appeals judges who run in one of six districts for an eight-year term, thirtyfour circuit judges and thirty-two circuit/chancery judges who run in one of twenty-four districts for a four-year term, and thirty-three chancery judges who run in one of twenty-four districts for a six-year term. All trial and appellate judges run in partisan elections. Voters of the state also elect judges to 124 municipal courts, 75 county courts, 13 courts of common pleas, 93 city courts, and 5 police courts.

Nationwide approximately one-third of the states provide for partisan or nonpartisan election of their trial and/or appellate judges. Another one-third provide for selection by the Missouri Plan or a modified Missouri Plan, and the remaining opt for some form of gubernatorial appointment for a legislative election?

METHODOLOGY Since 1976, the Arkansas Campaign Practices Act has required all judicial candidates to file pre-election and postelection campaign reports. S All candidates are required to report the amount of contributions and expenditures received or incurred on behalf of their campaigns.

The statistical information used for this article has been taken directly from the reports filed by each candidate with the Ethics Division of the Arkansas Secretary of State. During the 1990 election, candidates were barred from accepting more than 51,500 from anyone individual l

neither of the bills passed, both were predicated upon the "facts" that the cost of judicial elections was skyrocketing and lawyers were being required to (oot the bill. In a previous study of judicial elections in Arkansas, it was found that judicial elections are relatively inexpensive and that the role of lawyers in campaign financing is relntively smal1. s

Was the election of 1990 any different?

Are the costs of judicial elections increasing? Are lawyers being required to provide a greater percentilge of cilmpaign funds? The purpose of this iHlicle is to analyze the 1990 judieinl elections in Arkansas in an attempt tl) answer these questions.

or organization. In addition, for Table One contributions in excess of 5250, the name, address, and occupation of the COntributor'";;;iSaiiNiOOi;a;t;;Miaie~t~hi.0;;iidjS~O~fiS;.;e;;;le;;;c~t~in;:>g~S;;ta;;;t:;:e~A;;p!i:;p~e;I:;;la;;t~e;J~u~d~Qle;::s~_-.==~ had to be reported. Candidates were also Partisan NonPartisan MeritPIan GubemaloriaJ GovemorAppons MOdified ParisanEtec. ~Ne required to report the amount spent in ~1od~Io:n:--;;EJecl=Ion=_-:::::=-_~se:::::lect::::::Ion:,:",,_,::R::e,::en::':::Ion~E=:Ied~. ~M~e~rlt~P~Ian~R~e~ten~'Ion~E~Iec~ . ...=:EIectl~~AppI~.~ each of 15 categories, including filing fees, Alabama Georgia Alaska M"" Collomla Delaware ••_ television, radio, newspaper, other Artzona N.Harrpshire Hawaii Pemsytvan. tsnd.

=

advertising, direct mail, office supplies, N. Mexk:o

~

L:~~ ~~do

ss. ~=a office equipment, rent, phone, utilities, travel, entertainment, paid workers, and W. V1rglRa MOfiana other expenses. Candidates seeking office Nevada in 1990 . f ff N.CaJdIn. were competmg or one 0 OUf N. Dakota

i:

types of judicial office. At the trial level, there were elections for 32 circuit judge

:::na Kansas Maryland

NewJersey

:::VOf'k

=

VemlOf't

Comectlcut

S. carolina

Missouri

Ohio

Nebraska Oklahoma

Oregon

S. Dakota

positions, 34 circuit/chancery positions, ~=. ~~m1ng and 22 chancery positions. The large Table Two number of circuit/chancery races existed Methods of Selecting State Trial Judges because of the creation of a new juvenile justice system by the Arkansas Ceneral'i>a.i11lsaniW,NNoni(;nij' . p; EIIod;".

P1an=-N"Of1>el1==lsan=n""" EIIec- 1 Assembly in 1989. At the appellate level,r:;Iod~Io:n::---':;EJecl:;:~Ion~_-::=:--,se~lect~Ion~_..!R~e:,en~'Ion~E~Ied~ ...!E~Iec~JAw~!!;I.~No~R!!el!!eJ>£~Ie!!:e:""~Re!!'e~J>£~Ie~e::'·_1 there were three positions open on the ~ Alaska MUle liinois S. carol.... Comectlcut Caiforria Supreme Court. There were no races for Arkansas I~a ~~~do New N.Harrpshlre Indiana Virginia Delaware Jersey Pemsytvan.

Ha ai Kettucl<y Iowa Rhode Island W th e Court of Appeals. For the purpose of Kansas this study, a contested election is deflned N. Mississ.

Loulslana Kansas Massach.

MGKk:o Mk:higan Maryland VermonI as any e I ection in which two or more New York Minnesota Missouri candidates are seeking the same office. A N. Carot Mariana Nebraska candidate was considered the Temess.

Nevada Utah Texas N. Dakota Wyomlng "incumbent" if he or she was the current W. VIrginia Ohio holder of the particular office and running OI<lahoma ~~ for r~lection.

S. Dakota WHO WERE THE CANDIDATES? Washing.

It is importa n t in stud ying jud icia ll-hi";;;:i;-;;:W~isconsIn:;S~::-:=~==:c..,.,.-;;::-::;:-:--:--=-c:-c-;-c,--.."..----."...,...-----:=------1 elections to examine the makeup of the black candidate was succes!'ful. Ninety- raised by the candidates. The average typical candidate. There were six times as nine percent of the cnndidiltes who won judicial candidate received 522,158 in many candidates seeking office in 1990 as were white. The typical winner was also contributions. Candidates for the there had been in 1988, and the number of male (95.6%) and a member of the Supreme Court raised an average of candidates was the highest total recorded Democratic Party (96.7%). Of the 13 $153,341 as compared with $17,263 for an since campaign reports were first required Republican candidates, only three in 1976. During the 1990 campaign, over were able to win an election.

96 percent of the record 139 candidates Previous research on judicial Table Three: Candidate sought trial court positions. At the elections in Arkansas and around Demographics appellate level, only five candidates were the country has shown that most seeking one of three Supreme Court judges, once they reach office, rcmales ~J 7.9 positions. There was at least one election tend to remain in office ilnd in each of the state's twenty-four judicial seldom draw opposition. 9 The Males districts. The largest number of elections 1990 Arkansas election is genernlly Blacks occurred in the Sixth Judicial District consistent with these findings in ,(pulaski and Perry Counties) where there that almost 70 percent of Ihe Whites ] 95 were 26 candidates running for 14 incumbents ran in non~contested ) Independent Q 0.7 positions. The typical candidate in 1990 elections. That amount, however, was white, a mate, and a member of the was somewhat lower thiln the Republican .~ 9.4 Democratic Party. Even though 95 percent average of 88% from 1976-1988. of the candidates were white, 1990 Almost 7 percent of the incumbent Oemoe,., marked the first year in which a black trial judges who were challenged Circuil 29.7 candida~e sought judicial office at the trial were defeated. Overall, there was Circuit/Chancery 45.7 or appellate level. The percentage of both also a larger number of contested , men (92.1%) and Democrats (89.9%), races than in past years. Of the 139 Chancery ....... 21 while high, was slightly below the candidates, 62 percenl were Coun of Appeals ~ 0 average for previous years. The ages of involved in a contested race (See Supreme Coun _I) the candidates ranged from 32 to 76 years Tables 4 &< 5).

F~,-3,.6~_~~~~-.-~~-I with 47.5 as the average age for trial court WHERE DID THE MONEY o 10 20 30 40 50 60 70 60 90100 candidates and 54 years of age for the COME FROM? Percenl Supreme Court candidates.

The 1990 campaign \\filS the Although there waS an increase in the first Arkansas judicial campaign in number of black candidates, only one which over 3 million dollilrs was

=

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38 ARKANSAS LAWYER

JULY 1992

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average trial court candidate. While all judicial elections since 1976 have shown a disparity between the amount raised by appellate candidates and trial candidates, the difference was distorted in 1990 because of a single Supreme Court race in which the two candidates raised over 5695,000. An overwhelming amount of the money was also raised by candidates who were involved in a contested election. Over 2.7 million dollars was raised by the 86 candidates involved. in contested elections. (See Table 6 & 7) One of the most important issues in analyzing judicial elections concerns the source of campaign funds. In 1990, over 36 percent of the contributions for both Supreme Court and trial court candidates was prOVided by the candidates themselves. When only contested elections are considered, the amount climbs to 38 percent. In 1990, just as in each election since 1976, attorneys failed to playas significant a role as most people suggest. Only 9.4 percent of the total contributions came from attorneys. The highest percentage of attorney contributions was in the Supreme Court races where the average amounted to 13.5 percent of the total contributions. One interesting note is that attorneys contributed a higher percentage in noncontested races than in contested races. In non<on tested races, attorneys contributed an average of 10.7 percent of the funds, but in contested races the amount was only 9.2 percent. (See Table 8)

As in the past, judicial candidates relied more heavily upon smaller contributions of less than $250 thnn large contributions. However, the percentage of contributions over 5250 wns the second highest percentage since finilnces began being reported. Contributions over 5250, other than from the G1ndidnte, nmounted to an average of 25 percent of the total contributions. When only the Supreme Court races are exnmlOed, 37 percent of the contributions were In iln10unts above 5250. Only 21 percent of trial court contributions consisted of nn10unts above $250. Whether an election WilS contested does not seem to impact the size of the contributions in the election In contested elections, 25 percent of the total contributions were over 5250 lind in noncontested elections, the amount was 23 percent.

WHERE DOES THE MONEY GO? The average cost of a judicial campaign in 1990 was 521,037. That amount is somewhat mislending in that the five candidates for Supreme Court positions spent an average of 5140,631.

The average expense for ., trial court campaign was only $16,541. During the 1990 election, a record for total expenditures by a cnndid<lte was estabJished when one Supreme Court candidate spent over 5390.lXlO. From 1976 to 1988, only four cand,dates out of 306 had expenditures of over 5100,000. In 1990, one candidnte for ., Supreme Court position spent over $390,000, <lnother

Table 4: Effect of Incumbancy on Existence of Opposition Nu.bel:' Roo Caluan

••

Contested

Non-ContClsted

11

Incu.bent

Non-Inculllbont Coluan Total.

"

..

30.5 20.9

69.5 77.4

eo 57.6

61.9

53 31S. 1

1

0.000

".

100.0

Valid ca...

Hissing cases Response tate -

139 0

100.0\

Table 5: Effect of Incumbancy on Election Success Nuaber Roo ColUl.n \

•

Incu-.bent

Non-Incuabent Coluan Totals

Roo Tota 1 s

Won

1.0"

55 9).2 6«),4

6.e• e.'

5• 42.4

45.0 39.6

55.0 91. 7

57.6

65.5

J4,.5

100.0

.. ..

"

..

Corrected Chi .quare Degree. at freedo.

Probability a! chance -

32,82.

1

0.000

eo

"

Valid eases Hi •• i"9 cas.e Response rata -

1ol‫ס‬i

-

(l1u.Ml)

spent over 5240,000, and one candidate for a chancery court position spent over $100,000. On the other hand, the least amount of money spent on a single campaign was $240. (See Table 9) Even though record amounts of money were spent, over 26 percent of the candidates spent less than $5,000. Over 77 percent of the candidates spent less than $25,000. From 1976 to 1988, over 81.4 percent of the candidates spent less than 525,000. It does not appear that the costs of elections are skyrocketing the way the high profile elections lead people to believe. The only real trend in expenses is

5.

12

40.462

- - -......

~2.4

15.0 22.6

Cotl:'-eted Chi .quate • Deql:'ees a! !I:'eedoa Pta~bility a! chance -

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

Table 7: Avg. Contributions

Roo ToJ:als

85.0 79.1

..

Table 6:Avg. Contributions

.

139 0 100.0\

-

fee of Democratic candidates for state offices in 1990 was calculated by multiplying 2.5 percent by the annual salary by the term of office. The Party set the maximum amount at S8,800, which is what the candidates for the Supreme Court were required to pay. At the trial level, other advertising such as billboards and print literature was the second most expensive item followed by radio advertising. Newspaper advertising and mailing expenses were the next costliest items. When the costs of each type of advertising (T.V., radio, newspaper, and other ads) are combined, they amount to 46 percent of the total expenses. For the Supreme Court positions, television advertising was the most expensive item.

These expenses amounted to 26 percent of the total campaign expenses.

Surprisingly, the combined cost of all advertising amounts to only 47 percent of the expenses, which is almost identiCLlI to the trial court races. (See Tablen) Since the majority of the tobl funds in 1990 was raised in contested races, it is not surprising that the amount spent on contested races is overwhelming when compared to non路contested races. The

Table 8: Contributions & Expenditures in Contested and Non-Contested Judicial Elections, 1990 Contested Elections

Total Conbributions

$32,169

Itemized (over $250) Clindidlllte

$20,384

63.4\

$]2.187

37.9\

$ 2,974 $ 5,201

16.2t

unitemhed

$11,768

36.6\:

Total Expenditures

$30,950

Filing Fee

$ 3,544

Attorney other

9.2t

11. 5t

Non-Contested Elections Total Conbributlons

$ 5,914

Itemized (over $250) Candidate Attorney

$ 2,737 $ 1,375

46.3' 23.2'

$

630

$

732

10."

12.4\

unitemized

$ 3,183

53.8\

Total Expenditures

$ 5,139

other

Filing Fee that the costs of basic campaigns are moving from the under $5,000 range to the $5,000 to $10,000 range.

The campaign that has typically cost from $5,000 to SlO,OOO is also gradually moving in to the $10,000 to $25,000 range. These changes can be primarily attributed to inflation and higher filing fees. The campaign reports do not support the conclusion that campaign expenses are soaring. It is also incorrect to suggest that those candidates who spend large amounts of money are able to "buy" the election. Spending the most money does not guarantee victory for a candidate.

Only 65 percent of the candidates at the trinl level who spent the most money won the election. However, in both of the contested Supreme Court races the candidate who spent Ule most money won the election. (See Table 10) During the 1990 campaign, the single most expensive item for trial court cnmpaigns was the filing fee. An average of 21 percent of the total expenditures went towards the filing fee, which averaged $3,511. Supreme Court candidates paid an average of $7,343 for filing; however, the filing fee was only 5 percent of their total expenditures. The filing fee for judicial offices at the trial level is determined by the candidate's political party in each county. At the appellate level. the filing fee is determined by the state party. For example, the filing

40 ARKANSAS LAWYER

JULY 1992

74.3\

$ 3,819

Table 9: Total Expenditures, 1990 Supreme Court

Row Totals

29.7 17.5

0 0.0 0.0

37 26.8

8 32.0 27.6

7 28.0 11.1

1 4.0 20.0

25 18.1

10 22.2 24.4

5 11.1 17.2

30 66.7

45 32.6

47.6

0 0.0 0.0

$25,000 to $50,000

4 19.0 9,8

3 14.3 10.3

12 57.1 19.0

2 9.5 40.0

21 15,2

$50,000 to 100,000

0 0.0 0.0

4 57.1 13.8

3 42.9

0 0.0 0.0

5.1

0 0.0 0.0

1 33.3 3.4

0 0.0 0.0

2 66.7

3 2.2

41 29.7

29 21.0

63 45.7

5 3.6

Circuit Judge

Chancery Judge

18 48.6 43.9

8 21.6 27.6

$5,000 to $10,000

9 36.0 22.0

$10,000 to $25,000

Number Row \

Column \ Under $5000

Over $100,000

Column Totals

"'" 66.247 Chi square Degrees of freedom 15 Probablility of chance = 0.000

-

Circuit/ Chancery JUdge 11

4.8

7

40.0

138 100.0

:c 138 Valid cases Missing cases "'" 1 Response rate : 99,3\

Table 10: Effect of Spending on Election Success Number Row \ Column\;

"Big Spender" Won

trBig Spender" Lost

2

0 0.0

bar and public policy makers should consider this reality in the evaluation of any and all proposals for reform.

Row Totals

ENDNOTES Supreme Court

100.0

Trial Courts

12 35.0

22 65.0

2 5.0

3.

95.0

2.

12

36

67.0

3).0

100.0

Column Totals

average cost of a judicial campaign in a non-contested election was only 55,139 with approximately 75 percent of that amount going towards the filing fee. On the other hand, the average cost of a contested election was $30,950 of which only 11.5 per<:ent went to the filing fee.

CONCLUSION It can certainly not be suggested that there are no problems with Arkansas judicial elections. The record expenditure of over $600,000 in one 1990 race for the Supreme court is troubling. Even so, it is a rea) aberration in the 1990 election and pales in comparison to amounts spent in judicial elections in other states 10 . In addition, the majority of the expenditures in the race came from the candidates' personal funds. Still, it could be a signal of future increases in Arkansas judicial campaigns.

The low number of female and minority judges in the state also gives rise to some concern. While 1990 was a benchmark year in that the first black candidates this century sought judicial office at the trial or appellate level, only

one of them was successful. The federal Voting Rights Act litigation against the state judiciary which was recently handed down will bring substantiill change in this area. ll Many members of the bar and judiciary also continue to raise the philosophical argument that judicial elections constitute an inappropriate method of selection, pilrticularly when running in a partisan election. These parties wiU likely continue their push for constitutional change and the adoption of a "merit plan" system of judicial selection.

All of these factors may provide sound reasons for Arkansas to consider abandoning or reforming its process of partisan judicial ejections ilnd opting for some other format. Such change, however, should only be considered when there is a clear understilnding of the statistics the present system. Allegations that judicial campaigns <lre "out of control", that costs hilve "skyrocketed" and that lawyers are being "bankrupted by demands for contributions" are simply not borne out by the facts. Members of the

Table 11: Average Campaign Expenditures by Type

Filing Fee 10..

Radio ,."

Newspaper

Radio 19"

Newspaper 18"

9"

SUPREME COURT Total ($140,631)

TRIAL COURTS Total ($16,541)

I Senate Joint Resolution 10 of 1991 of the Arkansas General Assembly was one of the amendments to the Arkansas Constitution referred by the JOint Slate Agencies and Governmental Affairs Committee for C'Of\5ideration by the House and Senate during the 1991 Session. The original form of SJR 10 had been drafted by the Judicial Article Task Force of Lhe Arkansas Bar Association and had been approved by the ABA House of Delegates. The Bar's proposal was approved by the Senate in an altered form but was rejected by the House.

2 The Judicial Article Task Force proposal adopted by the ABA House of Delegates included a classic "merit plan'" system for the selection of members of the Arkansas Supreme Court and Court of Appeals. Candidates would be recommended to the Governor by a judidal nominating commission and, after serving several years, could sland for a retention election. An original proposal submitted by a committee of the Task Force had recommended that all judges - trial and appellate - be selected by a merit plan system. The provision for trial judges was changed to provide for selection by non-partisan ek!ction after strong opposition by some members of Lhe bar and the Arkansas Judicial Council.

3 House Bill 1427 of 1991 required all judicial atndidates to run as independents under ACA §7·7103. It was considered on several occasions by the House Judiciary Committee but never given a "do pass" rerommendation. While the Arkansas Judicial Council had voted to support a move to non-partisan elections, the bill was strongly opposed by election officials and non-judicial candidates who feared the loss of filing fee income from judicial candidates.

Preferential primary elections in Arkansas are funded by the respective poliucal parties and the amount of the filing fee for local party elections is set by the local party. In every county in the state candidates for judicial office pay an inordinately higher filing fee than other candidates.

4 House Bill 1424 of 1991 made it unlawful for any licensed attorney to make a contribution to a candidate for a judicial office and restricted a candidate from accepting such a contribution. The bill was considered but never approved by the House Judiciary Committee.

S James D. Gingerich, "Campaign Finance in Judicial Elections," TM Arka/'lSllS lAwyer, Vol. 23:66 (April 1989).

6 Arkansas Constitution of 1874, Article 7, Sections 6, 13. 29. and 38.

7 National Center for State Courts, Siale Court OrganiUllion 1987, Williamsburg: NCSC (1988~ 8 A.c.A. 7~201 rl seq.

9 Supra Note S at 69. 5« lillso Phillip Dubois, From Ballot to Bench. University of Texas Press: Austin (1980) and Henry Stumpf, American Judicial Politics, Harcourt Brace Jovanivich.. San Diego (1988~ 10. Supra note 5 at 6811 See James D. Gingerich, "Voting Rights Litigation and the Arkansas Judiciary: Cetting What You Didn't Ask For", 10 Midsouth Political Scitnct journnl43 (1989).

James D. Gingerich is the Director of the Administrative Office of the Courts, Supreme Court of Arkansas. Warren Readnour is a Student at Vanderbilt University School of Law and served as an intern in the Administrative Office of the Courts during the Summer of 1991.

IMPORTANT UPDATE FOR MEMBERS

lawyers learning How to Avoid Malpractice Suits & Saving Money on Premiums!

By W. A. "Chip" Harper Rebsamen Insurance, Inc. and CNA Insurance Company began presenting a Loss Control Program for Lawyers in October of 1991. The first two programs were presented in Little Rock. The third program was presented. in Hot Springs in conjunction with the annual meeting of the Arkansas Bar Association.

Mr. Michael Kos, an attorney with CNA, moderates the program and presents various portions of the Seminar.

Mr. George Spellmire, an attorney with the law firm of Hinshaw, Culbertson, et aI., in Chicago, also presents various topics on the program. Mr. Spellmire specializes in the defense of legal malpractice claims and has handled over 400 cases to date.

The program begins with a brief introduction and a review of the Seminar goals and objectives. It is hoped those who attend the Seminar will be able to improve administrative procedures, recognize situations which make an attorney vulnerable to malpractice claims and become familiar with techniques that can assist in the defense of an attorney's malpractice case.

The importance of recognizing and effectively handling situations that may constitute conflicts of interest, the implementation of effective client relation practices and the importance of necessary systems for effective office operations are same of the areas discussed. Practical solutions are offered.

The Seminar continues with a statistical analysis of legal malpractice claims. This is an analysis of 30,000 claims examined by the National Legal Malpractice Data Center. The areas of practice, most common types of errors, size of firm and attorney experience are reviewed to see where frequency and severity of legal malpractice claims occur.

Law office operations are explored next.

Areas addressed are docket control, scope of practice, organization and adminis¡ tration, systems and procedures, office 42 ARKANSAS LAWYER

JULY 1992

sharing, client billing and file review.

Suggestions are offered which may be implemented in your law office to help you avoid potential claims.

The need for continued professional education for the attorney and staff is discussed. Because failure to know the law represents the second most commonly asserted ground of leg"l malpractice, the importance of continued education cannot be over-stressed.

Client relations and the need for clear and frequent communication is next discussed. The majori ty of malpractice cases are filed against In wyers by their own clients. The importance of the use of both engagement and declination letters, how to properly terminate the attorney-client relationship, conflicts of interest and other potentially dangerous areas are reviewed.

Under the case management section you will learn how to avoid common substantive and administration errors.

Competence, diligence, Federal Rule 11, State sanctions and ret<lining legal files are areas addressed in this portion of the Seminar.

A claim representative from the CNA claims office makes n presentation on what an attorney C<ln expect if they ever become involved in a malpractice claim. Duties of the Company and the lnsured are reviewed concerning compliance with policy provisions and timely actions which must be taken by both parties. Questions from those in attendance are encouraged.

Each attendee receives a loss control manual containing reference materials and other useful information. The manual tracks with the format of the Seminar for easy note taking.

The CNA Loss Control for Lawyers Seminar has been approved for 4 hours CLE credit. The cost is 530 per attendee and is paid to the Ark'lnsas Institute for Continuing Legal Education. AICLE arranges the facilities, collects attendance fees and handles CLE verifici1tion forms.

There a re three more Seminars scheduled this year for attorneys in Arkansas. On July 28th a seminar will be conducted in Little Rock. On July 29th a Seminar will be conducted in conjunction with the Memphis/Shelby County Bar Association in Memphis. The final Seminar this year will be on October 27th in Ft. Smith.

Oh, did I forget to mention the premium credit? CNA will give its insured attomeys a premium credit of up to 7 1/2% for the firm, if all attorneys of that firm attend. U a portion of the a ttorneys attend, the firm will still get a percentage of the 7 1/2% credit. For example if at policy renewal or issuance, two attorneys in a four-member firm have attended the seminar, the premium credit is 50% of the 7 1/2% credit available, or 3.75%. The applicable premium credit applies for three consecutive renewals after each attomey's attendance. The amount of credit earned may be subject to minimum premium restrictions on file with the Arkansas insurance Department.

For more information on the seminar, the premium credit or on other insurance programs administered for members of the Arkansas Bar Association, contact the Professional Association Group Division of Rebsamen Insurance at 664-8791 or P.O. Box 3398, Little Rock, AJ< 72203.

We are pleased to continue our 30 year relationship of providing Professional Liability Insurance with CNA to members of the Arkansas Bar Association .â&#x20AC;˘

W.A. "Cllip" Harper, Jr. is a Vice-Preside"! of Rebsamen ["surallce, Inc., Ire is also the

Manager - ProfeSSional Association Group Divisio" (formerly Ratller, Beyer & Harper) He graduated from University of West Florida ill 1976, and began his i,Jsurallce career with Ralller, Beyer & Harper ill 1978. Harper obtained Certified lttsurallce Coullselor (CIC) designation in 1987.

Get it (Politi~y) 'Ibgether...

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The Ar1cansas Feport is the monthly new.;letter for political animals who need to know what's happening in state govemment and politics. We give complete coverage of:

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For a complimentary copy and subsaiption information, just fill out and retum the post-paid carej, Or call 374-5103 / FAX 374-1909. You'll soon have the '~nside scoop" on ArKansas politics!

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FROM LAWYERIN'

TO JUDGIN': life on the Supreme Court After A Year and a Half

By Associate Justice Robert L. Brown practice was either solo or part of a twoman partnership. An inordinate amount of time was spent on the telephone each day, and when the telephone was not ringing, this was even more worrisome.

Now the telephone rarely rings, but less this sound unduly poignant, let me assure you that this is not a bad thing. My nerves are vastly improved, and the time for sustained thought is significantly enhanced.. In fact, during those years of practicing law, I found that research, trial

preparation, and brief writing could only be effectively performed outside of the office or outside of regular office hours.

The appellate bench is precisely the opposite. The hours are longer than what I was accustomed to in the law practice. I find myself reading six or seven days a week during the day and at night; and

44 ARKANSAS lJ.WYER

JULY 1992

1. MAJOR ISSUES After ascending to the Supreme Court, I was ready to dent with the major issues

of our day: search and seizure, (ree speech, products linbility, will construction, capitnl murder. One of my first cases was Bolstad v. Pcrgesoll. Those of you who are not farnilinr with the case have missed something. Briefly, the facts dealt with a bull terrier th.,t had escaped from its master's car in a VA Hospital parking lot, chased a squirrel across the lot, leapt from n curb, nnd hurled itself into the side of the plaintiff's car causing a dent from the impact of its head. The case began in municipnl court and was appenled through the process until it got

to the Supreme Court. Now, mind you, I do not begrudge anyone the right to pursue legal remedies, though when I first got the case I thought I had been set up.

So, too, did one of my law clerks, who wrote a mock-heroic memo comparing the dog's assault on the car to Moby Dick battering the Pequod.

Appropriately enough the decision was handed down on April 1, and I received several "are you serious" type phone calls after the decision. Comments were made like: Is this another George Rose Smith type joke? The answer is no. It was not a joke and "yes, we were serious" and the case did raise a couple of interesting legal points. For those of you whose curiosity has been whetted now, you can find Bolstad v. Pergeson at 305 Ark. 163,806 S.w.2d 377 (1991).

When I first went on the court, I would periodically describe a case to my law clerks as a big case necessitating considerable work. One clerk in particular would bring me up short and say, "All cases are big cases." She was right, of course, irrespective of whether the case involved a squirrel-chasing bull terrier.

II. THE PROCESS The process for assigning and deciding cases in the Supreme Court is not as arcane as some lawyers might think.

Many lawyers appear reluctant to ask about the inner workings of the court for fear that the process is shrouded in ritual and mystery. It is not. The system designed and cobbled by former justice George Rose Smith and others is a model of efficiency and, no doubt, one of the most expeditious systems in the country in terms of time lapse bet\veen submission of the case and decision.

So to remove the scull-and-bones mystique surrounding the court process, I am going to reveal it to you. lt begins on Thursday. That's when the cases are delivered to the justices by the Supreme Court Clerk, Les Steen. Each justice gets two sets: one for the t\vo clerks and one for the justice. Typically, we receive anywhere from eight to fourteen cases each Thursday - this year, the average has been nine per week. Each justice is assigned a main case and a backup case by the clerk. If there are more than seven cases, a justice may have two main cases or two backups.

Who assigns individual cases to the justices? In the United States Supreme Court, the Chief justice does, and therein ties immense power. In Arkansas, it is the Supreme Court Clerk who ma kes the assignments, but does so purely on the basis of an objective rotation system. He has four assignment tracks going at the

same time: one for civil cases, one for criminal cases, one for capital murder cases, and one for cases to be orally argued. The cases are assigned in order according to their age and according to the next judge on that particular track in the rotation system.

The cases distributed on Thursday are submitted publicly eleven days later on Monday. On that day, the court sits en bane to hand down its decisions on prior cases and to hear any oral arguments requested on the cases submitted.

Typically there are two to three oral arguments.

At this point I want to disabuse you of one notion that had some currency on the street when I practiced law. We are not a one-justice/one<ase court. (I am still not able to convince a good friend who is a federal judge of this.) All seven justices read each case, and all are conversant with each case. I can remember that when I argued a case before the Supreme Court in the mid-80's, I was thoroughly convinced that some of the justices had not read the briefs. I even remarked something to that effect to my co-counsel.

Not so. We may not ask questions at oral argument, but we have read the cases.

Along this same line, a sure way for an advocate to waste time in oral argument is to repeat the facts of the case. The justices know the facts and are familiar with the salient points.

The result of all this is that you will frequently have concurrences and dissents from justices who were not the lead justice or the check justice on the case. The point, once more, is that every justice is involved in every case.

Following oral argument on the Monday of submission, the seven justices go into conference in a conference room on the first ncor of the Justice Building.

No one else sits in on the conferences.

(Texas, I am told, allows law clerks to participate, which to my way of thinking would have a definite chilling effect on free and frank discussion.) The case conferences usuaUy take about four hours.

At these conferences, each lead justice presents his main case. The court begins with the cases orally argued and then proceeds to take the next cases according to seniority. We all have numbers. The Chief Justice is number one, and the remaining judges are numbered by seniority. I do not need to remind you who is number seven.

With each case, the lead justice describes the facts and legal points raised and gives his recommendation. The check justice follows with his discussion, and it then goes around the table from the

number of the check justice in an ascending order according to the numbers of the remaining justices. Each justice comments and says how he votes. A tally is done. If the lead justice is in the majority, he writes the opinion. If not, the case goes to the check justice. If the check justice is also in the minority, it goes to the next justice in order of numerical ascension.

Following the case conference on Monday, the justices begin writing their opinions. Writing an opinion can be a whole lot different from studying the case. Several times I have changed my mind while doing so. On one occasion I wrote two opinions - one affirming and one reversing - and circulated them both.

Here is where your law clerks are invaluable. They usually have prepared a

III would describe a case to my low clerks as a big case necessitating considerable work. One clerk would bring me up shorl and soy,

IIAII cases are big cases. I She was right ... 11 legal memorandum with pertinent cases attached before conference. That research, the transcript nnd the briefs, and your own research form the basis for your opinion.

Decision conferences are held on Friday morning. If" justice's opinion is to be considered "t Fridny's decision conference, n copy must be delivered to each justice's office by 1 :00 o'clock the previous Thursday afternoon. (The 1:00 o'clock rule is t.,ken very seriously.) This means that in the m<ljority of cases the justices write their opinions over the two and one-half dnys from Monday's case conference to Thursday's 1:00 o'clock deadline.

At Friday's decision conference, you find out who agrees with your opinion, who has changed his mind, who wants to dissent and who wants to concur. Any

justice can hold an opinion for a week.

Assuming a dissent is written, the lead justice then has a week to respond. The dissenter can respond to that. And so on.

The opinion can be held up for weeks based on dissents, concurrences, and rewrites. Also, a justice may decide 1101 to write his opinion in two and one-half days. It may take him a week or two or three due to additional research and redrafting. There is no requirement that he move with particular dispatch. But if he does not have it done within sixty days from submission, he must write a letter to the Chief Justice explaining his reasons for the delay. This is according to the court's own administrative order.

This is a good time to mention how the Chief Justice's role differs from associate justices. With respect to opinions and cases, he is simply another justice.

However, he also is the administrator for the Supreme Court, and he chairs the oral arguments and conferences to lend a sense of order and fulmination to the process. In a real sense he is the point guard for the court.

At the Friday conferences, there is other business as well. After the opinions are considered, per curiam opinions dealing with Rule 37 petitions for postconviction relief are discussed. These opinions are ordinarily not published.

Next come motions relating to pending appeals. The motions have previously been assigned that week to the justices by the Supreme Court Clerk, and they are discussed and decided. The batch of motions typically will include efforts to expand the size of a brief, writs of prohibition, rehearing petitions, petitions for review, motions for rule on the clerk, and so forth. Some motions reach the level as emphasis and when that happens, a justice will write a decision under his own name.

So much for the mystique. While the procedure itself is hardly a secret, case assignments to justices are highly confidential and the progress of cases between submission and decision are kept closely under wraps. There may be breaches in confidentiality, but I have not experienced one in my time on the cou.rt.

If they occur, they are exceedingly rare.

III. RECUSALS Recusal decisions have been among the hardest that I have had to make during my tenure on the bench. These are not precipitated by motions of counsel.

Nor are they due to actual conflicts so much - real conflicts are relatively few and far between. Rather, they are caused by the appearance of a conflict because of a prior association or some other

circumstance that may have brought me into contact with an aspect of the case. My natural tendency is to want to hear every case. That, of course, is what I was elected to do. At the same time, our judicial canons provide that the appearance of a conflict is verboten. Suspicions and cynicism run deep in our society and the judicial process is hardly above suspicion.

Because this is the case, I now lean against my inclination and recuse whenever I perceive the possibility of a conflict that may cause doubt about my objectivity.

II

Perha ps low practice wasn It so bad. II

In the past, I have said that I knew that people did not want ivory-tower judges while at the same time I acknowledged that people also did not want judges who are susceptible to pressures that give off the aroma of prejudice. How judges handle appearance problems is clearly a matter of individual choice. Some judges in my experience would not acknowledge a lawyer's presence on the street if that counsel had a case pending before him.

Others are not that particular and engage in civilized amenities while avoiding extended social contact. The latter course strikes me as more realistic.

IV. AUTOMATION As already indicated, the Arkansas Supreme Court has a particularly well honed system for decisions which is all to the good. At the same time if we move too precipitously through our process, there is the potential that research will suffer. And that can lead to decisions based on the fClcts of individual cases and not on the law. It can also lead to inconsistent decisions. Now please undersl.:lnd. I am not saying that this has happened. I am saying there is the potential for this to happen.

Tha t is one reason I support automation in each justice's office and in each law clerk's office which will give us the capability to access CaseBase and, hopefully at some point, WestLaw for legClI research. This will expand our research capability significantly and help avoid the potential danger I just alluded to. It will be a supplement to hands-on research. The Court of Appeals already hns a computer in each judge's office. The Supreme Court has pilot programs in two justices' offices at this writing, including my own. Funds have been appropriated to implement full automation of the court this summer.

46 ARKANSAS LAWYER

JULY 1992

V. QUALITY OF LEGAL WORK

By and large, the quality of appellate work by the lawyers is good. I must confess that before coming on the court I had heard horror stories to the contrary.

The abstracts are sufficiently descriptive and the arguments are generally well organized and researched.

Then there are times when the briefs are hopelessly tangled and indecipherable and when the law cited is sparse indeed.

With ten cases to read n week, concise and cogent briefs are devoutly to be wished. A common pitfall is the kitchen-sink brief that fails to concentrnte on the best issues.

Repetition within a brief can also be particularly bothersome. And flipping back to an abstract only to find that the key document or pleilding or testimony is not there adds to the frustration level. On this last point it is again important to emphasize that only the lead justice has the record for a case. Other justices rely on the abstract. And when the abstract is deficient, we are left largely in the dark, and Rule 9 rears its ugly head.

VI. WORK LOAD The work is constant and ultimately very interesting with !'ome sameness, of course, but also with infinite variety. Each justice will write nbout fifty opinions for publication a year. In addition to that, he will write dissents and concurrences and his unpublished per curiam opinions

which primarily fall into the Rule 37 category. Total opinions by the court for the 1990/91 fiscal year were 748 for an average of 107 opinions per justice.

There is also the work ench week on motions, the various Supreme Court

committees (unauthorized practice oflaw, civil and criminal instructions, civil and criminal rules, for example), and general business of the court. Is it all manageable?

Yes, but at times the work load is arduous. And the temptation to play the part of super-jury and fact-finder is always presen t. For someone like myself coming right out of the law practice, this is especially so. I soon learned that as tantalizing as that is, it is a temptation best avoided. In other words, I am learning what it means to be an appellate judge.

CONCLUSION A certain humility attaches after service on the court. Perhaps it comes from the realization that all battles cannot be won and that the fine art of verbal persuasion can only take you so far. At times, though, the cause is great enough to make an especially impassioned appeal in conference. This was my situation a few months back when I finished a particularly well-reasoned argument with this statement: "Since coming on this court there have been only two cases where I knew the majority was absolutely wrong and this is one of them." To which one of my colleagues retorted, "Which of your cases, Bob, was the other one?"

Perhaps law practice wasn't so bad.• Robert L. Brown was elected to lhe

Supre~

Court in 1991. He is a graduate of the University of tI", South and received his law

degree from tI", University

of Virginia and a

Masters degree in Comparalive Literalure from Columbia University. He was in private

proctice prior to taking tile bench.

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HOUSE

NEWS

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I

UNIVERSITY OF ARKANSAS AT LfITLE ROCK SCHOOL OF LAW

by Howard B. Eisenberg Dean & Professor of Law Moving Plans. Th. UALR Law School will be moving to our new home on the .ast sid. of MacArthur Park beginning July 31st. For all practical purposes, the administrative offices will be closed from July 27 through August 7. Th. Law Library will b. op.n at 400 W.st Markham until July 31st, but will b. compl.t.ly c1os.d from August 1 through August 16th. Th. administrative offices will begin operations at the new building on August 10th, and the Library will reopen in MacArthur Park on August 17th. Although w. are all finally in on. building, the address for the Law School will b. 1201 MeAl mont, Littl.

Rock, AR. 72202-5142, while Law Library mail should b. addr.ss.d to 1203 McAlmont. Th. D.an's offic. t.lephon. numb.r will r.main 324-9434, and the Law Library will b. 324-9444. Oth.r phone numbers will be assigned later.

S.B.A. Honor.d. Th. UALR Student Bar Association has been awarded the Gov.mor's Trophy by the Law Student Division of the American Bar Association. The award is given for the outstanding ABA/LSD chapt.r at law schools in Arkansas, Oklahoma; and Kansas. UALR also won this award in the fall of 1991. Third y.ar stud.nt Pam.la Mos.l.y has been .Iected Tenth Circuit Governor of the Law Student Division of the American Bar Association. Scott Ellington serves as one of the Law Student Division members of the ABA House of Delegates.

Criminal Law S.minar. Th. UALR Criminal Law Association sponsored a one day program on "An Overview of the Law R.lating to Jury Selection" on April 11, 1992. Inst'uctors includ.d Professor Tom SullivOln; United States Magistrat. Judg. John For.st.r; d.fense lawyer James Massie; and Melissa McMath Hatfi.ld, a jury consultant from Littl. Rock. Ov.r 40 attorn.ys and law stud.nts att.nded.

Staff Honored. Four Law School staff m.mb.rs w'r' honor.d by UALR for continuous service. Pauline Ghidotti of

the Law Library staff has been with UALR for 25 y.ars. Oth.r Library staff honored were Brenda Peterson (20 years) and Gladys Alford (10 y.ars). Physical plant worker George Vorsas was also honored for ten years of service.

Professor Lawrence Averill made a presentation at the Symposium on the Uniform Probate Cod. h.ld at Albany Law School in N.w York in March. His presentation dealt with "Overview and Historical P.rspectiv.... Professor Av.rill

was also awarded the 1992 faculty award for service.

Professor Lynn Foster has completed work on the Fourth Edition of the Instructor's Manual for Legal R.search Exercises to accompany How to Find the Law. This volum., published by W.st Publishing Company, is coauthored by Prof.ssor Nancy P. Johnson at Georgia Statâ&#x20AC;˘.

Prof.ssor D.nt Gitch.1 pres.nted a program and demonstration on jury

selection to the Office of the United States

Conference of Christians and Jews Dinner which honored Little Rock Attorneys

Arkansas Bar Association Universily of Arkansas &:hool of Law Universily of Arkansas al Lillie Qcx:i &:hool of Law cordially invile you and your spouse or 8ue6l

Charles Eichenbaum and William

to an

Bowen. Professor Gitchel will be doing research in London, England, this fall for an upcoming book on jury trials.

Arkansas Bench and Bar Qeception

A ttorney for the Eastern District of Arkansas. He also acted as a team leader

at the Emory University School of Law Trial Techniques from May 5 to 19 in AUanta. In April Professor Gitchel was a vice chairperson of the 1992 National

Professor Kenneth

Gould

at the

was

Annual Meetil18

awarded the 1992 faculty award for public service. He also presented a program on

of the

"Procedural Potpourri'" to the Bar Association's Trial Practice Seminar in

American Bar Association

Hot Springs in March. Professor Gould will be visiting at Wake Forest during the fall semester.

Professor Andrew McClurg has

returned to UALR after a year visiting at Golden Gate University in San Francisco.

His article "The Rhetoric of Cun Control" has been accepted by the American

University

Law

Review

for

fall publication. An earlier article written by Professor McClurg on gun control will be included in an anthology on the subject to be published by Greenhaven Press this fall. Professor McClurg has been promoted tu full professor.

Professor Gene Mullins' article entitled ..Altemative Dispute Resolution and the OSHA Commission" has been

published' in the Fall, 1991 issue of the Administrative Law Journal.

Professor Philip D. Oliver was awarded the 1992 teaching award.

Professor Oliver spoke at the State Capitol

to fifty hi'lh school students from

Monterey Room

4th floor

5:00 p.m. - 700 p.m.

&Ill francisco tlilton

Monday, August. 10, 1992 throughout the stnle ns part of the "Close Up Arkansas" progrnm late in April. He

spoke on the 1992 election.

Ranko Shiraki Oliver taught the legal research section of the Certified Legal Assistant Study Course in March and planned and coordinated the "Effective

Legal Writing Seminnr" for AICLE in April.

Professor J. Thomas Sullivan has been promoted to Associate Professor and granted tenure. Professor Sullivan has been invited to spenk nt the Eighth Circuit

Conference in Minnenpolis in July.

Professor Robert R. Wright received a Colden Cavel Award for outstanding service as a Committee Chair of the Form Book Editorial Board. In addition, during the Arkansas Bar Association Annual

Meeting he spoke on the ABA Task Force Report on Solo and Small Firm Practitioners, of which he is the primary author. Professor Wright was also selected by the B.1r to be the author of a

history of the Arkansas bench and bar.

Dean Eisenberg has received a Certificate of Appreciation from the

United States Department of Housing and Urban Development for making several speeches on Fair Housing. Dean

Eisenberg was the keynote speaker at the Fourth Annual Law Day for Senior Citizens in Owensboro, Kentucky on May 18th. The program was sponsored by the Owensboro National Bank, the County Bar Association, and the Agency on

Aging.

John E. McAllister, P.E. EXPERT WITNESS Graduate Electrical Engineer, 34 Years Industrial Experience.

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UNIVERSITY OF ARKANSAS

AT FAYETTEVILLE SCHOOL OF LAW

by Dean Leonard P. Strickman Third year law student, Frank O'Mara will compete for Ireland in the SOOO meter Olympic run this August in Barcelona.

Visiting Professors at the Law School are Robert Berry from Boston College Law School, who is teaching a course in Sports Law, and David Faigman, from University of Califomia Hastings College of the Law, who is teaching a course in Advanced Evidence.

I moderated a panel discussion on "Hate Speech on Campus" as part of our first Annual Alumni Reunion Weekend May 16, 1992. Professor Mark Killenbeck, Professor Al Witte, University of Ark.msas Director of Human Resources, Barbara Taylor, and University of Arkansas Dean of Education, Rod McDavis, were the panelists.

Wayne Boyce of Newport, Arkansas, a former President of the Arkansas Bar Association, will be joining the faculty as Director of the Legal Clinic starting July 1, 1992. Part of his responsibilities will be as administrator of a $300,000 grant which the L,w School recently received from the United States Department of Education for our Clinical Program.

Jan Levine, who has been Co-Director of the Legal Writing Program at the University of Virginia School of Law, has been appointed Director of the Legal Writing Program at our Law School.

Glen-Peter Ahlers, who led the District of Columbia Law School Library to American Bar Association accreditation, has been appointed as the new Director of our Law Library.

Susan Pilcher, who came to Arkansas after serving as Managing Editor of the Stanford Law Review and Clerk to Federal District Judge John Rhoades in San Diego, has served effectively in our legal writing program during the past year. She will now join our faculty as an Assistant Professor in the Fall.

Professor and former Dean Jake Looney spoke a t a meeting of the Purchasing Management Association on "Contract Law: Written and Verbal Agreements," at the International Agricultural Law Conference at Iowa State University on "Acquiring Property Rights by Lease," and at the ABA/General Practice Section

Teleconference CLE on "Drafting Farm Leases/' He will illso teach a course on "Legal Aspects of Livestock Production and Marketing" at the Drake Summer Agricultural Law Institute.

Professor John Watkins will prepare the chapter on the Arkansas Freedom of Information Act for an updated edition of Tappina Officials' Secrets, a threevolume compendium of state open records and open meetings laws. This reference work is a project of the Reporters Committee for Freedom of the Press in Washington, DC. Professor HowilTd Brill recently spoke on "Ethical Issues in Family Law" at a CLE program in May. Professor Chauncey Brummer spoke on "Recent Developments in Division of Marital Property," and Professor Lonnie Beard spoke on "Tax Aspects of Transfers of Property Between Spouses and Former Spouses" at the same CLE program, which was sponsored by the U of A School of Law. Professor Dick Ric~ards, M. Zimmer, and C. Sullivan published a special supplement entitled "Special Release on the Civil Rights Act of 1992" to their treatise Employment Discrimination.

Librarian Claudia Driver was a presenter at a CLE seminar sponsored by the Ozark Legal Services on "The Role and Duties of Guardians ad litem in Juvenile Court" held in Benton and Washington Counties during the month o(June.

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