Arkansas2022-2023Bar Association President Joe F. Kolb A publication of the Arkansas Bar Association Vol. 57, No. 3, Summer 2022LawyerTheArkansas
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LawyerTheArkansasVol.57,No.3 features PUBLISHER Arkansas Bar Association Phone: (501) 375-4606 Fax: (501) 421-0732 www.arkbar.com EDITOR Anna K. Hubbard EXECUTIVE DIRECTOR Karen K. Hutchins PROOFREADER Cathy Underwood EDITORIAL BOARD Luke K. Burton Haley M. Heath Ashley Welch Hudson Anton Leo Janik, Jr. Jim L. Julian Kimberly D. Logue Drake Mann Gordon S. Rather, Jr. William A. Waddell, Jr., Chair Brett D. Watson David H. Williams Nicole M. Winters OFFICERSPresident Joe F. Kolb President-Elect Margaret Dobson Immediate Past President Bob Estes Secretary Glen Hoggard Treasurer Brant Perkins Parliamentarian Brent Eubanks YLS Chair William J. Ogles BAR ASSOCIATION STAFF Executive Director Karen K. Hutchins Executive Administrative Assistant Michele Glasgow Director of Government Relations Jay K. Robbins Director of Education & Operations Kristen Frye Data Integrity Specialist Alexis Teal Director of Finance & Administration Staci Clark Membership Administrator Janet K. Marshall Office & Data Administrator Cynthia Barnes Publications Director Anna Hubbard Professional Development Content Coordinator Royce V. LoBianco The Arkansas Lawyer (USPS 546-040) is published quarterly by the Arkansas Bar Association. Periodicals postage paid at Little Rock, Arkansas. POSTMASTER: send address changes to The Arkansas Lawyer, 2224 Cottondale Lane, Little Rock, Arkansas 72202. Subscription price to nonmembers of the Arkansas Bar Association $35.00 per year. Any opinion expressed herein is that of the author, and not necessarily that of the Arkansas Bar Association or The Arkansas Lawyer. Contributions to The Arkansas Lawyer are welcome and should be sent to Anna Hubbard, Editor, ahubbard@arkbar.com. All inquiries regarding advertising should be sent to Editor, The Arkansas Lawyer, at the above address. Copyright 2022, Arkansas Bar Association. All rights reserved. Contents Continued on Page 2 2022-202312 Arkansas Bar Association President Joe F. Kolb By Anna Hubbard Cover Photo at Bank OZK by Mike Pirnique Harsh16 Discovery Sanctions Under Arkansas Rule of Civil Procedure 37 are Effectively Unreviewable On Appeal By Gary D. Marts, Jr. New18 Arkansas Supreme Court Office of Ethics Counsel to Serve Arkansas Lawyers By Stark Ligon How20 to Ask a Judge to Recuse from a Case: What to Do and What Not to Do By Brett D. Watson Judicial22 Disqualification: The Disqualification Standard Pre- Ferguson , the Standard PostFerguson , and Practical Implications for Lawyers and Judges By Elizabeth James and Jonathan Streit Out-of-Court28 Statements that Aren't Hearsay By David H. Williams
District A1: Geoff Hamby, Jason B. Hendren, Timothy R. Scott, Kesha Zaffino
District A4: Kelsey K. Bardwell, Craig L. Cook, Brinkley B. Cook-Campbell, Dusti Standridge
Ex-officio Members: Brent Eubanks, Judge Hamilton H. Singleton, Judge Chaney W. Taylor, Edward T. Oglesby, Dean Cynthia Nance, Dean Theresa Beiner, Denise Reid Hoggard, Eddie H. Walker, Jr., Christopher Hussein, Karen K. Hutchins, Jay K. Robbins Board of Trustees
2 The Arkansas Lawyer www.arkbar.comLawyerTheArkansasVol.57,No.3in this issue President’s Report 7 Joe F. YoungKolbLawyers Section Report 8 William J. Ogles columns ArkBar News 4 ArkBar YLS Executive Council 8 ArkBar 2022-2023 Officers and 10 Board of Trustees At Large and Ex-officio ArkBarMembersAnnual Award Recipients 26 Joint Award Recipients 27 Disciplinary Actions 35 Arkansas Bar Foundation 36 In Memoriam 37 Thank you to the 2022 Annual Meeting 40 Sponsors
At Large Members: Joseph F. Kolb, Margaret Dobson, Bob Estes, Glen Hoggard, Brant Perkins, William J. Ogles
District A2-A3: Matthew Benson, Evelyn E. Brooks, Jason M. Hatfield, Michelle Rene' Jaskolski, Sarah C. Jewell, Kristin L. Pawlik, George M. Rozzell, Russell B. Winburn
District B : Michael S. Bingham, Randall L. Bynum, Thomas M. Carpenter, Tim J. Cullen, Bob Edwards, Steven P. Harrelson, Michael M. Harrison, Anton L. Janik, Jr., Jamie H. Jones, Victoria Leigh, B. Chase Mangiapane, William C. Mann III, Skye Martin, Stefan McBride, Kathleen M. McDonald, J. Cliff McKinney II, Jeremy M. McNabb, Molly M. McNulty, David S. Mitchell, Jr., Meredith S. Moore, John Ogles, Casey Rockwell, Emily M. Runyon, Carter C. Stein, Jessica Virden Mallett, Danyelle J. Walker, Patrick D. Wilson, George R. Wise
District C6: Bryce Cook, Paul N. Ford, Paul D. Waddell, Ryan M. Wilson District C7: Kandice A. Bell, Laurie Bridewell, Sterling T. Chaney, Taylor A. King
District C5: Joe A. Denton, John Tyler Henderson, Todd C. Watson, William Z. White
Delegate District C8: Carol C. Dalby, Amy Freedman, Connie L. Grace, Wm. Blake Montgomery
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Legislation: George M. Rozzell
4 The Arkansas Lawyer www.arkbar.com ArkBar News Celebrating50Years Congratulations to the following members who have been admitted to the practice of law in Arkansas for 50 years in 2021-2022 James E. Baine Ken F. Calhoon Charles (Larry) Carpenter, Jr. Orville C. Clift Robert R. Cloar Don N. Curdie Judge Robert Edwards Byron L. Freeland Allan Gates Morton Gitelman Gregory B. Graham Ronald L. Griggs Stuart W. Hankins Robert W. Hardin L. Cody Hayes Robert (Skip) L. Henry, III Don Hollingsworth Clifton H. Hoofman Eugene Hunt James W. Hyden Hermann Ivester Peter G. Kumpe Fletcher C. Lewis J. David Maddox Bobby McDaniel B. Jeffery Pence John V. Phelps Judge Ronnie A. Phillips Jerry Clark Post Judge Joe Ramos William (Randy) Riddell Ted C. Skokos Howard L. Slinkard Justice Rex Earl Starr Joseph A. Strode A. Glenn Vasser Tom D. Womack Ronald G. Woodruff ArkBar 2022-2023 Committee Chairs
Judiciary: Joe F. Kolb
our Legal Leaders! View the list of ArkBar Legal Leaders at /for-attorneys/leadersarkbar.com September 22 ULC Live 3- Hour CLE Webinars Webinar September 22 Arkansas Bar Foundation Fundraiser Little Rock October 4-5 The Wilson Law Group 3rd Annual CLE Program Little Rock and Zoom October 14 Labor & Employment Law CLE Little Rock November 1 Nominating petitions available for Board of Trustees and Office of the President December 8 Board of Trustees District B Social Little Rock December 9 Board of Trustees Meeting Little Rock Monthly Executive Committee Meetings Little Rock & Zoom Upcoming Events Firms and organizations leading the way, investing in the profession, and inspiring the advancement of the practice of law.
expertise
Law Related Education: Beverly I. Brister Law School: Harry A. Light
Bar Center Task Force: Bob Estes
Finance: Brant Perkins
Governance Drafting: Tim J. Cullen
Membership Task Force: Jason B. Hendren
Practice Closure Task Force: Stark Ligon
ArkBar President Joe Kolb appointed the following members to serve as chairs. Thank to all committee members who volunteer their time, and to the Watch for announcements for more Meeting: Molly and Chris McNulty
Thank
Editorial Advisory Board - The Arkansas Lawyer: William A. Waddell, Jr.
Ark.
committee appointments. Annual
you
Association.
Arkansas Bar PAC: Brent J. Eubanks Law Review Inc.: Kerri E. Kobbeman Carla G. Spainhour
Audit:
talent
Jurisprudence and Law Reform: David Biscoe Bingham
Membership Value Task Force: Jamie Huffman Jones
Mock Trial: Anthony L. McMullen
committee
Professional Ethics: Brad L. Hendricks
Program Review Task Force: Aaron L. Squyres
Section Reserves Task Force: Brian M. Clary you to
"We are excited to have Royce join our team,” Executive Director Karen K. Hutchins said. “His legal education will help the association provide extensive educational opportunities for our members, and he will be a great asset to handling the contractual obligations the Association deals with on a daily basis. Royce is looking forward to meeting with Sections, and monitoring cases and legislative changes that will help the association implement timely CLE topics."
Family
Corporate
WORD ABOUT TOWN
Debtor/Creditor:
ArkBar Welcomes New Staff Member Royce Lobianco joins the Association’s staff as the Professional Development Content Coordinator. Royce is a graduate of Lyon College with a Degree in Economics and Political Science, and he earned his Juris Doctorate at the William H. Bowen School of Law. During school, Royce gained extensive legal experience clerking and interning with Blair and Stroud, the Arkansas Attorney General Office, Arkansas Securities Department, Pulaski County Attorney’s Office and the United States Department of Agriculture. Royce is an avid golfer and a Little Rock native. Royce has been busy preparing to take the July bar exam while working and attending his first Arkansas Bar Association Meeting. He and his fiancée Hayley have three dogs, Rusty, Sonny, and Sully, and plan for a fall wedding.
Environmental
Natural
Thank you to the following members for leading the sections this year! Watch for additonal chair elections.
Quattlebaum, Grooms & Tull PLLC announced that Michael B. Crosby III has joined the firm as an associate. Hall Booth Smith, P.C. announced that two new attorneys joined its office in Rogers: Le Ann P. Box is Of Counsel and Amber N. Sanders is an Associate Attorney. Jonathan Martin has opened J. P. Martin Law, PLLC in Little Rock. Wright Lindsey Jennings announced that Scott Provencher has joined its medical malpractice defense team.
Business Law: Grant Cox Construction Law: Ashlea Brown & In-House Counsel: James Depper Lindsey Raines Law: Laura Johnson Law: Madison Pitts Law: Leslie Copeland Practice: James Goodhart & Employment: Bilenda Harris-Ritter Resources Law: Richard P. Walt Probate & Trust: Katie Watson Bingham
Labor
ArkBar 2022-23 Section Chairs
Governor Hutchinson has appointed Fort Smith attorney Sam Terry to fill a vacant judgeship in the Sebastian County District Court, Fort Smith District. Gov. Hutchinson appointed Matthew C. Boch and Jeffrey H. Moore to the state’s newly-created Independent Tax Appeals Commission. Skye Martin has joined the Board of Directors of the Pulaski County Bar Association.
Royce LoBianco
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 5 APPOINTMENTS AND ELECTIONS
Section of Taxation: Adam Reid Tax Law: Nicole Gore Workers’ Compensation Law: Bill Frye Young Lawyers’ Section: William J. Ogles
Appellate Law: Brett D. Watson
Government
Oyez! Oyez!
Thanks to the diligent work of ArkBar members, a new 2022 edition of Handling Appeals in Arkansas is now available for purchase and a new edition of the Statutes of Limitations Handbook is available as a free download for members. ArkBar Deskbooks on Arkansas law are available in print, pdf and as part of the Fastcase legal research tool. Go to: https://www. must be into
arkbar.com/for-attorneys/resources-nav/publications. You
logged
Real Estate Law: J. Cliff McKinney II
Elder
New ArkBar Practice Handbooks
arkbar.com to view the Publications page. 9th RevisedEditionMay2022 Prepared By Arkansas Bar Association Young Lawyers Section
6 The Arkansas Lawyer www.arkbar.com ADMINISTERED BY: Products sold and serviced by Business Planning Concepts, Inc dba Member Benefits, the program administrator. The Arkansas Bar Association is not a licensed insurance entity and does not sell insurance. Learn more about your benefits today. 800-282-8626memberbenefits.com/arkbar Are you taking advantage of the benefits you've earned? The ArkBar Insurance Marketplace offers a broad level of benefits choices, from Health and Dental to Disability and Term Life Insurance. You and your firm have access to concierge-level support, convenient enrollment technology, and unique cost-savings opportunities designed exclusively for ArkBar members, their staff, and their eligible dependents. INSURANCE MARKETPLACE SupplementMedicare Long-TermCare BenefitsGroup Long-TermDisabilityTelehealth&DentalVisionHealth TermLife ID ProtectionTheftInsurancePet
PRESIDENT'S REPORT
It’s a new bar year. And we're off to a great start.Itwas nice to see everyone back in Hot Springs, in person, for the 124th Annual Meeting. It was a great success! 499 members attended live and virtually. That’s significantly more than attended our last live annual meeting in 2019. And the programming was superlative, thanks to chairs Kristin Pawlik and Patrick Wilson. It’s extraordinary to think that for 124 years, the association has not missed hosting the Annual Meeting. Since 1898, many dedicated volunteers and staff have seen to it that Annual Meeting happens–through two world wars, the Great Depression, the Great Recession, two global pandemics, and times of social and political unrest. That’s a great testament to our past leaders and staff–but also, to our members for their commitment to the association. That commitment is based upon the value members derive from being members. For 124 years, it’s that value that has kept the association vibrant, thriving and strong. As Greek philosopher Heraclitus said, however, “There is nothing permanent except change.” And a lot has changed in 124 years–in our everyday lives and in our profession. Gone are the days when the majority of new lawyers joined the association after graduation because they were required to by their firms; or when attorneys joined because the association was one of only a few providers of professional news, information, and education; or when they joined because being a member was the best path for career advancement. The practice of law and the profession are different than they were 124 years ago–50 years ago–even two years ago. To remain a vibrant, thriving, strong association, we must ensure that the association continues to provide real value that lawyers need and want today. In short, we must ensure the association remains relevant.Howdo we do that? By renewing our focus on four areas. The first is membership value. This year we will stop guessing about what our members need and want and find out directly from the source. We’ll ask them what they value and the best way to deliver that to them.
The task force is charged with conducting a comprehensive survey of members and prospective members on their professional needs. I’ve asked the task force to also consider different membership models and to prepare a report of findings and recommendations for action by the Board of Trustees by the end of the year. This renewed focus on membership value is the key to the association’s success. But we’re not stopping there. Second, we’re refocusing on communicating with our members. Real communication is a two-way street. We’re pretty good at informing. We’re not as good at asking, listening, and discussing. This year, we’re reexamining our existing communication tools–our magazine, newsletter, ACE communities, even our meeting structures–and exploring ways to improve them to ensure that as we continue to inform, we also listen so we stay responsive to our members’ needs over time.
Third, we’re refocusing on engaging our members. Membership should be an active experience on every level. Improved communication will encourage better engagement, but we also must embrace other ideas like: getting off of Zoom and out of Little Rock; hosting regional events throughout the year for members and trustees to connect; and engaging members and trustees with generative discussions to encourage all of us to look up, look out, and consider the association’s role in the future.
Fourth, to ensure we are using our limited resources effectively and efficiently, we’re renewing our focus on integrating and unifying the many parts and programs of the association. We must break down silos and barriers that create inefficiencies, foster division, and distract from our core mission.
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 7 Joe F. Kolb is the President of the Arkansas Bar Association. Kolb is the lawmemberprincipalofthefirmj.kol b in Little Rock.
As a part of that effort, I have appointed a Section Reserves Task Force led by Brian Clary to review our cumbersome systems for sections and section reserves to encourage sections to continue to engage members, but also support and promote the association’s largerAndmission.Ihaveappointed a Program Review Task Force chaired by Aaron Squyres to consider and make recommendations for a mechanism to periodically evaluate the association’s current and future programming to ensure each program continues to add value to members and is an efficient use of resources.Ihavealso reappointed the Bar Center Task Force, led by Immediate Past President Bob Estes, to consider a number of issues related to the use and maintenance of the Bar Center and to act quickly to identify and implement solutions. By refocusing our attention and efforts on these four areas–providing value to members, communicating with members, engaging members, and ensuring the structure and operations of the association serve its overall mission–we can move the association forward. We can–and we will–build a stronger, more vibrant, more sustainable association that will weather the storms of time and host another 124 awesome Annual Meetings! ■
Moving the Association Forward
I have appointed a Membership Value Task Force, chaired by Jamie Jones, to take a deep dive into the membership value proposition.
Arkansas
William J. ChairOgles Wright, Lindsey & Jennings LLP Little Rock Caroline W. Chair-ElectKelley Kelley Law RogersFirm Frank SecretaryLaPorte-Jenner Pulaski Attorney’sCountyOfficeLittleRock
At the 124th Annual Bar Meeting in June, the Young Lawyers Section celebrated a great year under the leadership of Payton Bentley. We look forward to seeing Payton in more leadership roles within the Arkansas Bar Association in the future…. And hopefully he will continue to answer my calls when I have questions…Thiscoming year, the Young Lawyers Section Executive Council returns with some familiar faces, and welcomes new ones. Coming off the first in-person Annual Bar Meeting since 2019, the Young Lawyers Section is ready to get to work and continue the successes of the past and strive for new heights in the future. If you did not make it out for the YLS Mixer at the annual meeting – you missed out on a great time. But do not fret, we will have plenty more opportunities for you to get together with your friends and colleagues. Your Executive Council has big plans including exciting social events and meaningful pro bono opportunities, that will help grow our organization and provide a service for our community. We look forward to adding social events in all corners of our state throughout the year. Also new this year – YLS will partner with the state’s two law schools to charter new student chapters of the Arkansas Bar Association in each.
While everyone should be looking forward to the return of the YLS Christmas Party, MidYear Reception, and Annual Meeting, YLS will continue to partner with Legal Aid of Arkansas providing wills and estate planning documents for our first responders. Watch for this volunteer opportunity in early Spring 2023. Lastly, this group would not be possible without our wonderful section members. If you have an idea about an event, or would just like to get more involved in YLS, do not hesitate to reach out to me. Please follow all of our social media accounts to stay up to date on all upcoming YLS events.
Bar Association Young Lawyers Section Executive2022-2023Council
YOUNG LAWYERS SECTION REPORT BY WILLIAM J. OGLES YLS CHAIR Young Lawyers Section SectionLawyersYoungArkBar@ArkBarYLS 8 The Arkansas Lawyer www.arkbar.com
You can reach Will Ogles at Wogles@wlj.com and 501-371-0808.
Celina J. DistrictBanwarthARep. Mitchell, Williams, Selig, Gates Woodyard,&PLLCBentonville Kelsey DistrictBogganARep Leslie Copeland Law Fayetteville Samuel W. Mason District A Rep. Bailey & Oliver LawRogersFirm Justin W. Harper District B Rep. Deputy Prosecuting Attorney for the Sixth Judicial District Little Rock Zachary R. Trail District B Rep. Wright, Lindsey & Jennings LLP Little Rock Wesley B. Watts District B Rep. Branch,Warmath,Thompson,Dale&Butler,P.A.Paragould William T. Harris District C Rep Heaton & Harris LLP Hot Springs Robert T. Riley District C Rep Womack Phelps Puryear Mayfield & McNeil, JonesboroP.A. Sara M. Gay At-Large Rep. Womack Phelps Puryear Mayfield & McNeil, DominiqueJonesboroP.A.D.LaneAt-LargeRep. Pulaski County Attorney’s Office, Civil Litigation Little Rock LaurenAt-LargeSpencerRep. Barber Law Firm PLLC Little Rock Ledley S. Jennings District C Rep Pinnacle Legacy Law Benton
10 The Arkansas Lawyer www.arkbar.com Joe F. Kolb LittlePresidentj.kolbRock Margaret Dobson President-ElectSheridan Brant Perkins TheTreasurerPerkinsLawFirm,P.A.Jonesboro Brent J. Eubanks Humphries,ParliamentarianOdum & Eubanks, Little Rock Glen Hoggard HoggardSecretaryLawFirmLittleRock OFFICERS Bob Estes PastImmediatePresident Law Offices of Bob Estes AT-LARGE The Arkansas Bar Association began its 2022-2023 bar year on July 1, 2022. President Joe Kolb and the ArkBar officers welcome you and thank you for your membership. The Arkansas Bar Association is your statewide professional network—your connection to over 5,000 lawyers across the state. Thank you to all of the Board of Trustees who are listed on Page 2 of this issue. Watch for a special feature on the Board of Trustees in the September issue of the Member Newsletter. Judge Hamilton H. Singleton Arkansas Judicial CouncilCamdenPresident TheresaDeanM.Beiner UA Little Rock Bowen School of Law CynthiaDeanE.Nance University of Arkansas School of Law DeniseHoggardReid Rainwater, Holt & DelegateLittleSextonRocktothe ABA Christopher Hussein Legal Aid of DelegateSpringdaleArkansastotheABA EX-OFFICIO William J. Ogles YLS Chair Wright Lindsey & Jennings LLP Little Rock Karen K. Hutchins Executive Director Edward T. Oglesby Arkansas Bar Foundation President AT-LARGE Arkansas Bar Association 2022-2023 Officers and Board of Trustees At-Large & Ex-officio Members ArkBar’s Mission Statement: To support attorneys; advance the practice of law; advocate for the legal profession; foster professionalism, civility, and integrity; and protect the rule of law. Jay K. Robbins Lobbyist
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 11 Commercial Finance Business Sucession Planning Business Sucession Planning State & Federal Tax Credits & Incentives State & Federal Tax Credits & Incentives Business Formation & Governance Business Formation & Governance Coporate & Transactional Little Rock 501.375.9131 | Fayetteville 479.695.1330 | Rogers 479.301.2444 | roselawfirm.com Expanding Our Heritage of Legal Talent in Northwest Arkansas Rebecca B. HurstJoseph D. Allen John C. OgleReese P. Dollins William R. MullenMichael D. McGill Jim Smith PRESENTING SPONSOR September 15, 2022 Governor’s Mansion 6:00 - 8:30 pm Presented by the Arkansas Bar Association and Arkansas Business SPONSORS ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS ASSOCIATIONBAR LEGAL HALL OF FAME ARKANSAS ASSOCIATIONBAR LEGAL HALL OF FAME ARKANSAS LEGAL ARKANSAS ASSOCIATIONBAR LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAME ARKANSAS BA R ASSOCIATION LEGAL HALL OF FAMELEGAL HALL FAME LEGAL OF FAME INAUGURAL CLASS Philip S. Anderson Senator David Pryor Secretary Rodney E. Slater Justice Annabelle Tuck GovernorJudgePOSTHUMOUSRichardS.ArnoldScipioAfricanusJonesSidneyMcMath LittleGROUPRockNine Honoringlegallegacies. The Arkansas Bar Association Hall of Fame recognizes the men and women who have made an extraordinary contribution to the law, society, the administration of justice and legal education. We invite all Arkansans, not just the legal community, to join us in celebrating those who have helped shape justice and positively impacted our profession and state. Thursday, September 24, 2020 Wally Allen Ballroom, Statehouse Convention Center Reception 6 p.m. / Dinner and Ceremony 7-9 p.m. Tickets: $150, $1,500 for a table of 10 For more information and to purchase tickets: Arkansas Business.com/LegalHallOfFame Contact Tiffany Mattzela at 501-455-9334 or TMattzela@ABPG.Com for details and sponsorship questions. ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME LEGAL HALL OF FAME LEGAL HALL OF FAME LEGAL HALL OF FAMELEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS BAR ASSOCIATION LEGAL HALL OF FAME ARKANSAS ASSOCIATIONBAR LEGAL HALL OF FAMELEGAL HALL OF FAME ARKANSAS BAR SPONSOR:
Joe F. Kolb
Arkansas Bar Association President Article by Anna Hubbard Photo taken at Bank OZK headquarters in Little Rock by Mike Pirnique
12 The Arkansas Lawyer www.arkbar.com
Born and raised in Little Rock, Joe graduated from Catholic High School in 1983 and from Hendrix College in 1986 with a B.A. in economics and business. He earned his Juris Doctor from Southern Methodist University in 1989. Though he comes from a long line of medical professionals, Joe’s interests pointed to the law instead of medicine. He grew up learning to defend his rights as the youngest of three boys when brothers would try to convince him to trade his “boring paper money” for a “shiny dime.” He had a passion for building and creating and considered becoming an architect, but his strong passion for standing his ground and defending his rights prevailed leading him to law school. Like his father and grandfather who both served as presidents of the Arkansas Medical Society where they led physician advocacy in the state, Joe is proud to lead the legal profession this year.
“I encourage all of us to look up, look out and consider the association’s role in the future of the profession,” Joe said. “I truly believe that the best way forward is reimagining the value of membership and how we deliver that value and communicating with our members, asking, listening, discussing with them what they need or want so that we stay responsive and relevant.”
Joe was sworn in as president of the association on June 17, 2022, during the association’s 124th Annual Meeting at the Hot Springs Convention Center. Chief Justice Dan Kemp administered the oath of “Joeoffice.is the consummate ‘idea man,’” said longtime friend and retired Judge Mary Spencer McGowan. “I have rarely worked with anyone of his caliber who could bring such fresh ideas to the table. He has inspired our work on Gridiron as well as all nonprofits to which he has devoted so much of his time. He will do an outstanding job as President of the Arkansas Bar Association during a critical time in all our organizations. He will implement new programs and new approaches which will appeal to the younger generation and will ensure the growth and continuation of our bar association. He is not afraid to be innovative, and we are lucky he is willing to serve.”
The association has honored Joe with a Presidential Award of Excellence for his service as association Treasurer, a Presidential Award of Excellence for co-chairing the 2020 Annual Meeting and a Golden Gavel Award for his work as co-chair of the 2018 Mid-Year Meeting. He has served on the Arkansas Bar Association Commission on Diversity and Inclusion and the By-Laws Drafting Subcommittee. Joe has led the association as Chair of the Finance Committee and as Chair of the Audit Committee and has served on Joe F. Kolb was sworn in as the 125th President of the Arkansas Bar Association on June 17, 2022.
s the 125th president of the Arkansas Bar Association, Joe F. Kolb is committed to moving the association forward by keeping an ear to the ground and his eye on the prize—a robust and engaged association. Determining value, listening, engag ing and making sure resources are used effectively and efficiently are Joe’s top priorities for this year. And he’s prepared to be creative.
“Gridiron satisfied a lot of things for me. It was theater, it was being on the board, making connections with folks in the legal profession, a joint fundraiser for some nonprofits. It was a great fit and a lot of fun. You meet folks and that leads to other opportunities and things.”
Pictured left: Joe, Cindy Kolb and Chief Justice Kemp
Joe worked closely with Judge McGowan who is still the producer of Gridiron, the lively and funny musical production that spoofs current events. A longtime supporter of the arts, Joe’s involvement in theater began as a child with the Arkansas Children’s Theatre. He continued to follow the theater in high school and college before beginning a decades-long commitment to local art groups. After serving many years on the young professional group, Friends of the Rep, he served on the board of Directors for the Arkansas Repertory Theatre, Ballet Arkansas, ACANSA Arts Festival, and the MidAmerica Arts Alliance Board of Directors.
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 13
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14 The Arkansas Lawyer www.arkbar.com the Hall of Fame Sponsorship Committee, the Engagement Task Force, the Committee for a Modern Judiciary, the CLE Committee, the Strategic Governance Task Force, and the Governance Committee.
Joe began his career at the Barber Law Firm where he developed a niche for creditor/bankruptcy work. He met his wife of 19 years, Cindy, while working there. Cindy now works at Cross, Gunter, Witherspoon & Galchus, P.C. Joe started his own law practice, j.kolb, business law for innovators, in 2013. The couple has two daughters, Caroline (13 years old) and Emily (12 years old).
“As a solo practitioner myself, Cindy is in all respects my law partner, my mentor, and my chief encouragement officer–giving me advice, cajoling and love,” Joe said in his swearing-in speech. He also thanked his daughters for their patience and for “putting up with your goofy dad and putting up with all my
and entertaining extends all year at the Kolb house, with multiple trees at Christmas and fireworks at Fourth of July.
Joe’s creativity extends to his law practice that focuses on representing businesses and business owners looking for innovative ways to grow their companies. He said that you can always approach things in two ways.
Past President Brian Rosenthal asked Joe and Cindy to chair the 2020 Annual Meeting, which because of a world pandemic ended up being a unique opportunity to embrace change and do something that had not been thought of before. “Joe has shown unparalleled dedication to our association. He co-chaired our 122nd annual meeting with his wife Cindy, while serving as Treasurer. If that were not enough, his fully planned inperson meeting was unexpectedly shifted to a virtual meeting in 2020, and he skillfully and selflessly worked with Karen and our staff to deliver a meaningful, fun, wellattended program as we were all discovering this new method of remote learning. Many state associations canceled their meetings that summer, but our tradition continued.
Networking and learning from others are two of the greatest values of membership.
Joe advises new attorneys to get engaged whether it be in the association or other professional or civic organizations. “Don’t be afraid to pick up the phone and say ‘I’m interested in getting involved’ because the opportunities that it gives you will pay off over time in terms of meeting new people, developing new clients or getting the information you need to make your practice successful.”Joefound value in the association’s Debtor-Creditor section when he began his practice. “As I got more and more active with the section, I learned more and more about the association, and I became more familiar with other folks who were doing similar work within the association. I found value in being more involved. That’s what it boils down to is value.”
Whileantics.”Cindy may be the chief encouragement officer and chief logistics officer of the family, Joe is the master of all things Halloween. A project that has grown over the years, he transforms his front yard into the “Needlehaven Cemetery and Wedding Chapel” scene each October. The elaborate display of the skeleton bridal party takes over the entire front yard as well as the dining room which can be seen from the yard. He builds all the props himself including the giant spider-covered pergola and the intricate stain glass window for the wedding chapel that sits at the apex of the roof and must be mounted by renting an extra-large ladder. The joy of creating scenes
Joe will lead in collaborative, inclusive and creative ways, and we will all benefit and grow from his service.”
“Some people will join the association because firms say you should join," Joe added. “Some people will join because of mission, wanting to support the profession. But I think the reason why people stick around is because their experience with the association gives them value. It can be the value of really good CLE. It can be the value of really good social functions. It can be the value of being perceived as someone who is a leader in the legal profession or value in helping the association as a nonprofit do good work for others. That’s my focus for the coming year–making sure that the association remains relevant and is providing value that our members want and need.”AsArkBar Treasurer for the four years leading up to being elected PresidentElect, Joe has had the unique position of Joe's Halloween
“You can approach it in black and white or you can approach in color. Not to say your options in black and white are always wrong but until you approach an issue in color you might not see an opportunity that may ultimately be more beneficial to you or more rewarding to you."
creation—Needlehaven Cemetery and Wedding Chapel
Pictured right:
The first plank, membership value, will be supported by the new Membership Value Task Force led by Jamie Jones. The task force is charged with working with a professional group to determine what members and nonmember attorneys need and want through surveying, focus groups, and“Joeone-on-ones.iscommitted to determining in an intrinsically-valid way what the members need so that the bar association can fill that need and provide value,” Jamie Jones said. “It is important that the Membership Value Task Force listen to the needs of the whole of the bar association, not just one or two members. It is an opportunity for the bar association to not only gather needed information, but to really listen to our members in a way that ensures all members have a voice and that the members understand that their membership matters. The Task Force looks forward to listening to our members and identifying new values for our members.”
Joe has laid out a four-plank platform with new ideas and strong support elements to move the association forward.
“To become better, stronger, more vibrant, and more sustainable the association must continue to evolve,” Joe said. “Nothing has been certain in the last three to four years other than everything is uncertain. We have been making the best decisions that we could make in the moment to stay abreast of our current challenges. And we have done a good job, but we can’t stop there. The pace of evolution is faster now than ever. That is why it is so important that we take the time now to ask our members and prospective members what they need and want to help them become better lawyers or improve their practices, so the association stays relevant in this ever-changing world.” ■
The second plank is communication. “We need to do more day in and day out to make sure we are relevant over time. We can’t just take a snapshot of what people want today on a single survey. We need to evaluate our communications systems so that we make sure that as we are informing that we are also listening.”
It is an ambitious agenda in challenging times, but Joe is up to the task. Past President Paul Keith compares Joe’s leadership to Atticus Finch, one of the finest compliments a lawyer can receive. “In To Kill a Mockingbird, Maudie from across the street said to Jem Finch of his father, Atticus, ‘there are some men in this world who are born to do our unpleasant jobs for us. Your father’s one of them.’ Joe’s vision and talent are just what this association needs to move into a new era stronger than ever. He is our Atticus Finch,” Paul said. Executive director Karen K. Hutchins has seen Joe’s commitment to the association and its members. “Joe’s volunteer leadership over the past several years has helped him create a focused vision for the association’s future success and sustainability.”
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 15 knowing the business side of the association better than most. “The great thing about the position of treasurer is that you get the opportunity to work with a lot of great presidents; people who are highly intelligent, effective and dynamic.
“
To become better, stronger, more vibrant, and more sustainable the association must continue to evolve.”
The third plank is engagement. “We need to engage our members on every level. Some members don’t want to attend social functions. Some members only join because they want information, like CLE. Other members join because they enjoy the social functions and sign up for every opportunity to rub shoulders with fellow lawyers. Either way their interaction with the association needs to be an active experience. We need to look at our meeting structures, the way we deliver CLE, the way we deliver information to make sure all those things are active experiences, and we are engaging on all levels with our members.”
Cindy, Caroline, Emily and Joe
The fourth plank is to make sure that we use our limited resources in an efficient way so that we can maximize the amount of value we can provide our members based upon those resources. So, we need to review our current programming to make sure it is providing the value that our members want and need and we need to assess any new and proposed programming for an effective and efficient use of resources to make sure that we are delivering value over time.”
By Gary D. Marts, Jr. Gary D. Marts, Jr. is a partner at Wright Lindsey Jennings where he focuses his practice on complex litigation, particularly class action, mass tort, and appellate matters.
16 The Arkansas Lawyer www.arkbar.com
Those cases rarely, if ever,6 reversed a sanctions order. But the “severe sanctions for flagrant discovery violations” formula suggested that a circuit court might abuse its discretion with a sanction disproportionate to the offense. Our appellate courts thus reviewed such sanctions in a way that supported the notion that a circuit court might go too far by issuing the most severe sanctions if the violation was not flagrant.7
Many motions for failure to comply with an order compelling production under Ark. R. Civ. P. 37 request sanctions ranging from monetary penalties to striking pleadings, default, or dismissal, essentially loss of the case. While harsh sanctions under Rule 37 have traditionally been “a rare judicial act,”1 Arkansas courts have begun leveling such sanctions more frequently. And the appellate courts often refuse to review those sanctions for proportionality to the offense. Discovery thus requires caution because mistakes can prove fatal to a case, with no hope of resurrection on appeal. Among a list of possible sanctions, Rule 37(b)(2) allows the striking of a pleading, dismissal, or default judgment when a party has “failed to obey an order to provide or permit discovery.” Rule 37(d) allows the same sanctions against a party that fails to respond to written discovery requests or fails to appear for a deposition.
Starting with the earliest cases to consider sanctions under Rule 37 after its adoption in 1978, in Harper v. Wheatley Implement Co., the Arkansas Supreme Court described loss of a case (struck pleadings, default, or dismissal) as an “extraordinary remedy” that “should be used sparingly and only when other measures fail because of the inherent danger of prejudice.”2 Six years after Harper, the Supreme Court “recognize[d] that dismissal with prejudice is a drastic sanction.”3 In 1990, in Rodgers v. McRaven’s Cherry Picker, Inc., the Court summarized earlier cases on the subject as upholding trial courts’ “discretion in granting severe Rule 37 sanctions for flagrant discovery violations.”4 The appellate courts have repeated that formula several times since Rodgers 5
A sentence in Calandro v. Parkerson8 has spawned a line of cases that dash most hopes of reversing a sanctions order—no matter how disproportionate to the violation—on appeal. Calandro
2. New Standard: Severe Sanctions Acceptable No Matter How Slight the Violation and No Meaningful Appellate Review
Harsh Discovery Sanctions Under Arkansas Rule of Civil Procedure 37 Are Effectively Unreviewable on Appeal
1. Early Standard: Severe Sanctions Only for Flagrant Violations
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 17 concluded that the circuit court did not abuse its discretion “in dismissing the case for Appellants’ flagrant failure to comply with the court’s directive to provide full and complete discovery to Appellee.”9 That conclusion sufficed to justify a severe sanction under earlier cases. But the Court had more to say: “The fact that the sanction imposed by the trial court was undoubtedly final and severe is of no consequence, as Rule 37 specifically provides for dismissal of the action where a party fails to comply with an order to provide discovery.”10 In other words, striking pleadings, dismissing actions, or defaulting parties cannot be disproportionately harsh regardless of the circumstances because Rule 37 allows those sanctions.TheSupreme Court later repeated the Calandro language as justification for a summary rejection of a sanctioned party’s argument that default judgment was unduly harsh.11 And the Court of Appeals began citing Calandro as a quick rebuttal to arguments that sanctions were unduly harsh, often rejecting the argument out of hand.12 Sometimes that language preceded examination of whether the sanctioned behavior was egregious enough to justify a harsh sanction,13 sometimes not.14 The language from Calandro has thus hardened into a rule that effectively bars appellate review of most sanctions. As the Court of Appeals recently said: [N]o authority [supports] the position that discovery sanctions explicitly authorized under our rules can be an abuse of discretion if we deem them to be too harsh. [Nor does authority] support the proposition that Rule 37 sanctions must be proportionate or balanced to the nature and severity of the discovery violation.15 That formulation essentially nullifies the “severe sanctions for flagrant discovery violations” formulation by rejecting any inquiry into whether the sanctioned behavior is indeed flagrant. Under this line of cases, if the sanction is listed in the rule, a court cannot abuse discretion by imposing it.
4. Rodgers v. McRaven’s Cherry Picker, Inc., 302 Ark. 140, 145, 788 S.W.2d 227, 230 5.(1990).
7. See, e.g., Ross Sys., Inc. v. Advanced Env’t Recycling Techs., Inc., 2011 Ark. 473, at 5 (not reported in South Western Reporter) (considering whether striking pleadings was too severe and concluding that the circuit court did not abuse its discretion under the 8.circumstances).333Ark.603, 970 S.W.2d 796 (1998).
14. See, e.g., Irby, supra note 12, and Clampitt, supra note 12. 15. S.A.M. Grp., LLC v. CR Crawford Constr., LLC, 2020 Ark. App. 173, at 4, 596 S.W.3d 590, 592. The opinion does not cite Calandro
13. See Coulson Oil Co. v. Tully, 84 Ark. App. 241, 255, 139 S.W.3d 158, 166 (2003) (“Given the court’s authority to impose such sanctions under Rule 37(d) in the absence of an order to compel discovery, the next question is whether, under the facts presented, the circuit court abused its discretion in doing so.”).
10. Id. 11. Nat’l Front Page, LLC v. State ex rel. Pryor, 350 Ark. 286, 295, 86 S.W.3d 848, 853 (2002) (citing Calandro).
12. See, e.g., Irby v. Irby, 2003 WL 21085380, at *5 (Ark. Ct. App. May 14, 2003) (unpublished); Clampitt v. Starving Students, Inc., 2003 WL 21277390, at *2 (Ark. Ct. App. June 4, 2003) (unpublished).
6. Harper is confusing in this regard. After affirming the striking of a pleading as a sanction, the Supreme Court reversed a finding that the resale of equipment was commercially reasonable under the Uniform Commercial Code. 278 Ark. at 34, 643 S.W.2d at 540. In that discussion, the Court remarked that “the ruling of the [trial] court prevented the appellants from introducing evidence of the commercial reasonableness of the chattels,” which the Court deemed prejudicial. Id. at 35, 643 S.W.2d at 540. It is not clear from the opinion that this exclusion of the evidence was a discovery sanction. Nevertheless, Rodgers later characterized the exclusion as a reversed discovery sanction. 302 Ark. at 146, 788 S.W.2d at 230.
See, e.g., S. Coll. of Naturopathy v. State ex rel. Beebe, 360 Ark. 543, 558, 203 S.W.3d 111, 120 (2005); Calandro v. Parkerson, 333 Ark. 603, 608, 970 S.W.2d 796, 799 (1998); Rush v. Fieldcrest Cannon, Inc., 326 Ark. 849, 854, 934 S.W.2d 512, 515 (1996); Viking Ins. Co. v. Jester, 310 Ark. 317, 836 S.W.2d 371 (1992); Coulson Oil Co. v. Tully, 84 Ark. App. 241, 251, 139 S.W.3d 158, 164 (2003).
9. Id. at 612, 970 S.W.2d at 801.
16. In 2021, the Court of Appeals affirmed the striking of pleadings as a discovery sanction in at least three cases. See Endurance Freight Logistics, LLC v. Reddick, 2021 Ark. App. 470, 638 S.W.3d 859; Paschal Heating & Air Conditioning Co. v. Zotti, 2021 Ark. App. 372, at 9 (not reported in South Western Reporter); Merica v. S&S Home Improvements, Inc., 2021 Ark. App. 197, 625 S.W.3d 356. And as of the writing of this article, the Court of Appeals in 2022 has affirmed the striking of pleadings as a discovery violation in one case. Nicholas v. Jones, 2022 Ark. App. 55, 640 S.W.3d 417. The author of this article represented the appellant in Endurance ■
2. Harper v. Wheatley Implement Co., 278 Ark. 27, 33, 643 S.W.2d 537, 539 (1982).
3. Cagle v. Fennel, 297 Ark. 353, 356, 761 S.W.2d 926, 928 (1988). That characterization was repeated three years later in Cook v. Wills, 305 Ark. 442, 808 S.W.2d 758 (1991).
1. Edgar v. Slaughter, 548 F.2d 770, 773 (8th Cir. 1977). That traditional approach reflects judicial efforts to achieve “the proper balance between the conflicting policies of the need to prevent delays and the sound public policy of deciding cases on their merits.” Id. (citations omitted).
Endnotes:
3. Conclusion Such cases seem to be increasingly common, suggesting a new willingness of trial courts to impose the harshest sanctions.16 Given the essential lack of appellate review of those sanctions, circuit courts can rest assured that any sanctions they impose for discovery violations—no matter how severe—will be affirmed on appeal. And attorneys must avoid any situation in which a court might impose a Rule 37 sanction because that will probably be the final word on the matter. That final word could be the loss of a case without a hearing on the merits.
The OEC website is
Thanks to the behind-the-scenes work of Justice Courtney Hudson for several years, the new Arkansas Supreme Court Office of Ethics Counsel (OEC) opened for business on October 1, 2021.1 Since then over 280 inquiries have been received and almost all have been disposed of with either verbal or written guidance, advice, or opinions from this one-lawyer office. The new office fills a need that has been seen for years and gives Arkansas lawyers a service that is available in at least 40 other states. Almost all inquiries have come to the Office by either the Ethics Help Line (501-683-4014) or by email (ethicscounsel@arcourts.gov).
isasmayEthicsincontentsgrouppresentationInvite“Advertising,”Client,”“PotentialFirms,”Agreements,”CLEalreadyforsubstantivewithandreviewing(ARPC)Arkansasyouwrittenverballyguidance,ethics-counsel.www.arcourts.gov/administration/WhatcanyougetfromOEC?Generallyadvice,andwrittenopinionsorinquickemailsummaryorafullopinioninterpretingandassistingonlegalethicsissues,inapplyingtheRulesofProfessionalConducttoyourfutureconduct,andinyourmarketing,advertising,solicitationmaterialsforcompliancetheARPC.OECwillalsoprovideethicstopicsCLEprogramslawyergroups.Severalprogramshavebeengiven.TopicsintheOECinventoryinclude“Fees&Fee“LawyersChangingLaw“Conflicts,”“Confidentiality,”Clients,”“Organizationasthe“Disqualification,”“Solicitation,”and“TrustAccounting.”EthicsCounseltomakeaCLEEthicstoyourlocalbarorstatelegalin-personorvirtually.ByOECRule9,allinquiriesandtheofdiscussionswithOECarekeptstrictconfidenceatandbyOECandCounsel.TheinquiringattorneyuseinformationobtainedfromOECthelawyerdeemsappropriate.OECcompletelyindependentoftheOffice
of Professional Conduct (OPC), and the business of each office is confidential from the other office by Court rules. The only reporting required of OEC is in the form of periodic “statistical” reports to the Supreme Court. The services of OEC are available to qualifying lawyers because the services provided are funded by a portion of your annual law license fee. Justice Hudson is the Court’s supervising justice for oversight of OEC. The per curiam also adopted conforming changes to ARPC 1.6 (confidentiality) and 8.3 (reporting misconduct).Therearerestrictions in the per curiam on types of inquiries to which OEC can respond.
First, the Arkansas law license of the inquiring attorney must be active and the lawyer in good standing, not in suspended status. The inquiry must be about the inquiring attorney’s own future conduct, not the attorney’s past conduct; not about the conduct of another attorney; not about an issue of law or law-related interpretation; and not about matters or persons that are the subject of a pending disciplinary complaint at OPC.2 OEC is prohibited from providing advice or opinion to nonlawyers.3 OEC offers a telephone Help Line service on basic ethics and Rules questions, for a quicker verbal or electronic response than can be given by a request for a more detailed written response.4 An email inquiry Request Form is on the OEC website. All inquiries to OEC shall include an oral or written statement by the inquiring attorney that the attorney and the subject matter of the inquiry are not the subject of a pending disciplinary proceeding against the inquiring attorney or any other lawyer in the law firm in which the inquiring attorney may practice.5 The inquiring attorney shall also disclose to OEC if the attorney and the subject matter of the inquiry are involved in civil or criminal litigation.6 OEC may decline to respond to some inquiries, as set out in OEC Rule 5.B. With some inquiries, Ethics Counsel may prepare a written recital of the facts presented or heard and send it to the inquiring attorney for review and confirmation before going forward with an opinion.OECadvice or opinions are not binding on any court, tribunal, or the Office or the Committee on Professional Conduct. These other forums and entities may take an OEC opinion into consideration and give it such weight as the forum determines to be appropriate.7 Advice and opinions from OEC are the product of just one Ethics Counsel. At this time there is no ethics advisory committee to review the work of Ethics Counsel or to produce and issue opinions that are a committee effort. OEC may issue redacted summaries of its opinions and make them available online or elsewhere to attorneys and the public to foster compliance with the ARPC and promote ethical conduct by attorneys.8 Soon you will see selected summaries appear on the OEC website. of the Office of Ethics Counsel
18 The Arkansas Lawyer www.arkbar.com
and Amendments to Rules 1.6 and 8.3 of the Arkansas Rules of Professional Conduct, 2021 Ark. 169. 2. OEC Rules 5.D and 6. 3. OEC Rule 5.E. 4. OEC Rule 4.B. 5. OEC Rule 5.D. 6. OEC Rule 6.C. 7. OEC Rule 7. 8. OEC Rule 8. ■
Endnotes: 1. See In Re Creation
Supreme Court Office of Ethics Counsel to Serve Arkansas Lawyers Stark EthicsCourtArkansasLigon,SupremeOfficeofCounsel By Stark
New Arkansas Ligon
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 19 William Ogles: Judith Ryan Gray Young Lawyer Service Award Zach Trail: YLS Award of Excellence Patrick Wilson: Golden Gavel Award, 2022 Annual Meeting Co-Chair We proudly continue to raise the bar. LITTLE ROCK ROGERS wlj.com SINCE 1900 LINDSEYWRIGHT JENNINGS • How many data breaches have you faced? • How much time do you spend every year on manually redacting documents? • How much money do you spend every year on redacting •documents?Howoftendo you share sensitive documents with third parties that are eligible to country-specific data protection regulations?Privacyis Just a Scan Away Contact us at 501-374-7000 for www.businessworld.netinfo!920SouthSpringStreetLittleRock,AR72201
20 The Arkansas Lawyer www.arkbar.com
Step # 3: Present your evidence for recusal at a hearing. So, you filed your motion, you detailed and supported the facts, you asked for a hearing, and the judge has scheduled one. What now? Do not plan to show up and simply chat with the judge about your motion. This is an evidentiary hearing.6 Marshal exhibits, subpoena witnesses, prepare
For a discussion of a fully supported motion to recuse, see In re Estate of Edens.4
Step # 2: Ask for a hearing. Along with filing your fully-supported motion, ask for a hearing. If you don’t, the judge does not have to give you one.5 This could fall under Step #1, because you should ask in your motion for a hearing. But because of this step’s importance, we separated it out. Also, make sure the court knows you want a hearing by submitting a written request to the judge and filing it with the clerk.
Brett D. Watson is an Arkansas appellate attorney who has handled more than 250 appeals in state and federal courts.
By Brett D. Watson
We attorneys do not enjoy asking judges to recuse from cases. Will the judge take it personally? Will a judge who denies my recusal motion treat my client fairly? What about my clients in other cases?
Step # 1: File a fully supported motion to recuse. If you have investigated the facts and are convinced that you have grounds for a judge to recuse and that to ask is wise, file a motion to recuse. Include all information you have about why the judge should recuse. That mindset will help you avoid extremes. One extreme is to make allegations that you do not know if you can prove. Asking a judge to recuse is serious business; so is being held in contempt for making unfounded allegations.
Another extreme is to file a barebones motion and then hope to flesh it out at a hearing. A judge must schedule a hearing on a recusal motion only if the motion makes more than conclusory allegations that support recusal.3 So include all relevant facts in your motion. If you can support those facts by attaching documents, affidavits, and other exhibits to your motion, even better.
Even with those uneasy questions, it may be necessary to ask a judge to recuse when, as Liz James and Jonathan Streit explain on page 22 of this issue in discussing Ferguson v. State, a judge’s impartiality might reasonably be questioned.1 When that time comes, how should you make the request? What must you show? And what responsibility does the judge have? This article answers those questions as to Arkansas circuit judges.2
How to Ask a Judge to Recuse from a Case: What to Do and What Not to Do
hearing puts a judge in a tough spot, it is the process our courts must follow. Unless that changes, circuit courts must hold evidentiary hearings on motions to recuse if the movant asks for one and the motion makes more than conclusory allegations.Giventhe
Ultimately, the judge, exasperated and wanting to erase all doubt about his fairness, let the parties admit any evidence they wanted: “I’m going to avoid playing Judge on the admission of evidence.… I’m just not going to stop anybody from putting anythingAlthoughin.”8the
Endnotes:
1. See Ferguson v. State, 2016 Ark. 319, at 7, 498 S.W.3d 733, 737 (citing Ark. Code of Jud. Conduct R. 2.11(A)). 2. This process does not apply to appellate judges. See Bentonville Sch. Dist. v. Sitton, 2022 Ark. 1. 3. Nash v. Hendricks, 369 Ark. 60, 67, 250 S.W.3d 541, 546 (2007); Stilley v. Fort Smith Sch. Dist., 367 Ark. 193, 203, 238 S.W.3d 902, 907–08 (2006); McKinney v. State, 2019 Ark. App. 347, at 4–5, 583 S.W.3d 399, 402; Ferren v. USAA Ins. Co., 2015 Ark. App. 477, at 4, 469 S.W.3d 805, 4.807.2018 Ark. App. 226, at 4–7, 548 S.W.3d 179, 181–84. 5. Stilley, 367 Ark. at 202, 238 S.W.3d at 907; Dolphin v. State, 328 Ark. 1, 5, 942 S.W.2d 815, 818 (1997); Ferren, 2015 Ark. App. 477, at 4, 469 S.W.3d at 807. 6. McKinney, 2019 Ark. App. 347, at 4–7, 583 S.W.3d at 402–03; Ferren, 2015 Ark. App. 477, at 3, 469 S.W.3d at 807. 7. In re Edens, 2018 Ark. App. 226, at 15, 548 S.W.3d at 188. 8. Id. 9. Ferguson, 2016 Ark. 319, at 7, 498 S.W.3d at 737. 10. With a few exceptions, orders on motions to recuse are not immediately appealable. See Ferren, 2015 Ark. App. 477, at 2 n.1, 469 S.W.3d at 806.
scheduled publication, manage
We
qualified
2016 Ferguson opinion, remember that your goal is not to prove that the judge is biased, just that the judge’s impartiality might reasonably be questioned.9 If you succeed and the judge recuses, Arkansas Supreme Court Administrative Order No. 16, § III, provides the process for assigning a new judge to your case. But if the judge does not hold a hearing on your detailed motion or does not recuse when you’ve met your burden, you will have given yourself a potential basis for appeal if the case does not turn out in your favor.10 Conclusion Carefully investigate and weigh the facts beforehand. If you move forward, be respectful, realizing the position your motion puts the judge in. Write with soberness, not with smugness or glee. Do not be snide or accusatory. Instead be humble, calm, rely on evidence. Continue to honor Your Honor. And if you do all these things, you just might persuade judges that, although they believe they can be impartial, an objective observer might have a reasonable basis to feel otherwise.
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 21 examinations, and present your evidence withButconfidence.don’tbecocky. Walk and talk with care. The presiding judge is the subject of the hearing. The judge must listen to attorneys and witnesses talk about his or her impartiality or lack of. The judge must decide the admissibility of evidence, evidence that may reflect poorly on him or her. Most judges strive to be fair even while their fairness is questioned. One judge expressed his frustration this way: [T]his is such an extraordinary hearing where I’m being asked to hear the case, make rulings on evidence, and at the same time I’m not removed from the case like I normally am. Normally, I have nothing in the case. Somebody wins, somebody loses. There’s no reason for anybody to question my impartiality. But when the subject is whether I am impartial …, I’m afraid even if I make a ruling that I think is correct under the law, … people might not understand that I’m doing it from the perspective of a Judge and not as an individual.7
and provide you with proofs along
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By Elizabeth James and Jonathan Streit
The Arkansas Supreme Court adopted the American Bar Association’s Model Code of Judicial Conduct as the standard for the state Judiciary in 1973.7 In 1988 this Model Code was formally published as the “Arkansas Code of Judicial Conduct” (the “Code”).8 Canon 3(C)(1) of the Code, titled “Disqualification,” merely suggested that a judge “should disqualify himself in a proceeding in which his impartiality might reasonably be questioned.”9 Given the permissive nature of the rule, the Code left the decision whether to disqualify to the individual judge’s own conscience.10 The result was an impartation of broad discretionary authority upon judges when deciding disqualification issues: e.g. “[t]he decision to disqualify from a case is, again, discretionary with the trial court;”11 “[t]he matter of whether to disqualify is to
If you are not already familiar with the case of Ferguson v. State, we recommend reading it. We won’t belabor the facts of the case for purposes of this article, but Ferguson was an appeal of a criminal proceeding wherein the defendant had unsuccessfully sought the disqualification of the presiding circuit judge on grounds questioning the judge’s impartiality.1 In a 4-2 decision, the circuit judge’s denial of the motion to recuse was affirmed by the Arkansas Court of Appeals.2 The case was subsequently taken up on review by the Arkansas Supreme Court and, in a 4-3 decision, was reversed and remanded for a new trial before a different judge.3 We would argue that Ferguson is now the seminal case on 21st century judicial disqualification. However, explaining what made it such an important legal precedent and what the practical implications are for lawyers and judges will require a brief history lesson on judicial disqualification in Arkansas. Of course, we cannot possibly share this history without giving a nod to the Arkansas Constitution, which guarantees the judicial disqualification process,4 not to mention our legislature which also enacted statutory law to permit disqualification of judges under certain circumstances.5 However, the broadest power under which a litigant may seek judicial disqualification is through the Arkansas Code of Judicial Conduct, which was the focal point of the discussion in Ferguson.6
James & Streit in Searcy. Jono represented the Defendant in the Ferguson case in Circuit Court and on appeal.
f you have ever had the displeasure of moving for the disqualification or recusal of your presiding judge on grounds questioning the judge’s impartiality, or if you are the judge on the receiving end of such a motion, we offer our earnest commiseration. The thought of seeking the disqualification of a presiding judge in any setting or for any reason makes us cringe as much as, if not more than, applying the Rule Against Perpetuities. The good news is there is now case law that should ameliorate any stressors that filing such a motion—or receiving such a motion— would normally induce.
22 The Arkansas Lawyer www.arkbar.com
Permissive “Should” Disqualify Rule
Elizabeth (Liz) James and Jonathan (Jono) Streit are partners in their private practice
I
Judicial Disqualification The Disqualification Standard Pre-Ferguson, the Standard Post-Ferguson, and Practical Implications for Lawyers and Judges
Unfortunately, as recusal decisions were appealed, the appellate courts continued applying the legal analysis derived from the provisions of the former Code. Take for example the first case addressing the issue of judicial disqualification under the revised Code: Reel v. State. In its opinion, the Arkansas Supreme Court acknowledged the “shall disqualify” language of the revised Code, but that acknowledgment alone is the full extent to which the revisions were employed.21Intheensuing legal analysis, the opinion cited Canon 3(C) as authority for the proposition that disqualification was discretionary with the presiding judge.22 Canon 3(C), as you read earlier (because you didn’t skip the history portion of this article, right?), was the disqualification provision found in the first publication of the Code.23 Under the revised Code, however, the disqualification provision was set forth in Canon 3(E)(1).24 As further authority for determining that disqualification was discretionary rather than mandatory, the opinion cited two cases that were decided under the first publication of the Code.25 But these cases were no longer congruent with the mandatory requirements of the revised Code. To compound issues further, the old test for determining whether there was an appearance of impropriety was employed and the court held that the trial judge was “in the better position to determine if his recent experience would compromise his impartiality.”26 The reasonable minds analysis wasn’t utilized. This decision critically undercut the purpose of the revisions made to the Code and ultimately buried the revised mandate of the “shall disqualify” rule under conflicting and repeatedly cited “discretionary” precedent, never to be seen again—for two more decades, at least. The misapplication of past case law to the revised disqualification rules of the Code continued for 22 years, entrenching in Arkansas law an errant standard of trial judges retaining sole discretion in deciding their disqualification fate: e.g. “[t]he question of bias is generally confined to the conscience of the judge;”27 “[w]hether a judge has become biased to the point that he should disqualify himself is a matter to be confined to the conscience of the judge;”28 and, “[a] trial judge’s decision to recuse is within his or her discretion.”29 Because of the resultant competing standards, a judge’s decision to recuse was mandatory under the Code, yet discretionary under legal precedent. The two are irreconcilable. The Ferguson Opinions
A revised Arkansas Code of Judicial Conduct was adopted in 1993 which included a significant change with respect to the former disqualification rule.15 Canon 3(E)(1) of the revised Code, still titled “Disqualification,” mandated that a judge “shall disqualify himself or herself in a proceeding in which the judge’s impartiality might reasonably be questioned.”16 This revised Code also held that the test for determining the existence of an appearance of impropriety was an objective “reasonable minds” test rather than relying upon the conscience of the judges themselves.17 The official comments found under this revised rule stated, “[u]nder this rule, a judge is disqualified whenever the judge’s impartiality might reasonably be questioned.”18 These revisions intentionally changed the entire application of the rule. Yet, these revisions were not applied with the same force they were unquestionably intended to create.
In construing the application of the Code to the facts in Ferguson’s appeal, the majority in the Arkansas Court of Appeals repeated the obsolete rule that a judge’s recusal is
Mandatory “Shall” Disqualify Rule
The Code was revised a third time in 2009 and a fourth time in 2016, but the provisions regarding disqualification have not been substantively changed since 1993.19
The Conflict of Law
The 1993 revisions incorporated into the Code should have rendered the prior “discretionary” precedent decided under the previous version of the Code inapplicable to judicial recusal decisions being decided under the revised rule for disqualification.
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 23 be determined in the sound discretion of the judge in question;”12 “disqualification of a judge is discretionary with the judge himself;”13 and, “whether recusal is required lies within the judge’s conscience.”14 Naturally, under such an unrestricted rule, what followed were decades of precedent supporting wholly discretionary authority to judges on matters of recusal. This, of course, makes sense given the latitude this rule bestowed upon the presiding judge.
The only difference worth noting for purposes of this article is that the original “Canon” was replaced with enumerated headings. We now know the rule of judicial disqualification as Rule 2.11.20
The case was accepted on review by the Arkansas Supreme Court and was subsequently reversed and remanded.33 In reaching its determination, the majority focused on the plain wording of Rule 2.11(A) and provided an analysis of the application of that rule.34 The court explained that the word “shall” found in Rule 2.11(A) had mandatory rather than discretionary implications and once a judge’s impartiality has been reasonably questioned, “the mandatory portion of Rule 2.11(A) is invoked and the judge is required to disqualify.”35
7. In re Uniform Docketing Rule, 255 Ark. 1073 (Dec. 24, 1973) (per curiam).
Practical Implications of Ferguson
2. Ferguson v. State, 2015 Ark. App. 722, at 6, 479 S.W.3d 25, 28, rev’d, 2016 Ark. 319, 498 S.W.3d 733. 3. Ferguson v. State, 2016 Ark. 319, at 8, 498 S.W.3d 733, 738. 4. Ark. Const. amend. 80, § 12 (“No Justice or Judge shall preside or participate in any case in which he or she might be interested in the outcome, in which any party is related to him or her by consanguinity or affinity within such degree as prescribed by law, or in which he or she may have been counsel or have presided in any inferior court.”).
15. In re Arkansas Code of Judicial Conduct, 313 Ark. App’x 737 (July 5, 1993) (per 16.curiam). Ark. Code Jud. Conduct Canon 3(E)(1) (1993) (current version at R. 2.11 (amended 2016)) (emphasis added).
24. Ark. Code Jud. Conduct Canon 3(E)(1) (1993) (current version at R. 2.11 (amended 2016)) (emphasis added).
20. Id. 21. Reel v. State, 318 Ark. 565, 569, 886 S.W.2d 615, 617 (1994). 22. Id. 23. Ark. Code Jud. Conduct Canon 3(C)(1) (1988) (current version at R. 2.11 (amended 2016)) (emphasis added).
8. In re Arkansas Code of Judicial Conduct, 295 Ark. 707 (June 6, 1988) (per curiam).
The court further clarified that, when determining the reasonableness of a litigant’s questioning of the judge’s impartiality, the judge is required to “be mindful of the perception of bias from the litigant’s perspective.”36
10. Id. Canon 2(A) cmt. ¶ 2 (current version at R. 1.2 (amended 2016)).
5. E.g., Ark. Code Ann. § 16-11-108 (disqualification of state supreme court justices); § 16-13-214 (disqualification of circuit court judges); § 16-15-111 (disqualification of county court judges).
13. Korolko v. Korolko, 33 Ark. App. 194, 197, 803 S.W.2d 948, 950 (1991).
24 The Arkansas Lawyer www.arkbar.com discretionary.30 However, the dissenting judges exposed the conflict between the case law cited by the majority against the plain language of the Code which mandated recusal.31 The dissent posited this precise issue, “How do we square the mandatory language in Rule 2.11 with the ‘[a] judge’s recusal is discretionary’ caselaw on which the majority relies?”32
9. Ark. Code Jud. Conduct Canon 3(C) (1) (1988) (current version at R. 2.11 (amended 2016)) (emphasis added).
12. Matthews v. State, 313 Ark. 327, 330, 854 S.W.2d 339, 341 (1993).
14. Duty v. State, 45 Ark. App. 1, 6, 871 S.W.2d 400, 403 (1994).
18. Id. Canon 3(E)(1) cmt. 1 (1993) (current version at R. 2.11 cmt. 1 (amended 2016)) (emphasis added).
17. Id. Canon 2(A) cmt. ¶ 2 (current version at R. 1.2 (amended 2016)).
19. Compare Ark. Code Jud. Conduct R. 2.11 (2009) (amended 2016), with Ark. Code Jud. Conduct Canon 3(E)(1) (1993) (current version at R. 2.11 (amended 2016)).
Endnotes:
The decision in Ferguson is contrary to most of the existing case law that had developed over the preceding years. Specifically, Ferguson overruled the standard the appellate courts had continued to rely on as authority for the proposition that recusal was a wholly discretionary decision left to the presiding judge. Ferguson held instead that “[o]bviously, if a judge’s impartiality may ‘reasonably’ be questioned, the mandatory portion of [the disqualification rule] is invoked and the judge is required to disqualify.”37 The Ferguson holding also revived the objective test for determining a judge’s impartiality, which turns on the perception of reasonable minds rather than the judge’s own conscience. Now, under the Ferguson analysis, the opinion and conscience of the judge are immaterial; it is the objective standard of a reasonable person that is determinative on this issue. So, what does all of this mean for practitioners? First, it means judicial disqualification doesn’t have to be an intimidating or even confrontational practice. If Ferguson gives us anything, it’s proof that disqualification isn’t a personal attack against your judge. There isn’t a requirement in Rule 2.11 of the Code to prove the presiding judge is actually biased before you can seek disqualification. All that is required is a showing that a reasonable person might call into question the judge’s impartiality. This changes the tone of the conversation by allowing a movant to proceed with a request for disqualification without putting his or her own judge on trial, so to speak. It should always be the goal in this profession that we maintain the upmost respect for the bench, and utilizing an objective reasonableminds standard for matters of judicial disqualification can help ensure that goal is consistently realized.
11. Roe v. Dietrick, 310 Ark. 54, 59, 835 S.W.2d 289, 292 (1992).
6. Ark. Code Jud. Conduct R. 2.11 (amended 2016).
Second, Ferguson makes judicial disqualification attainable where it has been nearly impossible to achieve in decades past. Previously, achieving disqualification was nearly impossible because we were embarking on a task akin to catching the wind: proving some nefarious bias that was within the province of the judge’s own conscience. Talk about a tall order. Now, at least in theory, judicial disqualification is an available remedy in circumstances where it is absolutely necessary.Admittedly, there is still some clean-up on the aisle of judicial disqualification. Disqualification decisions are still being reviewed under the highly deferential abuseof-discretion standard.38 Since Ferguson was decided, we have had the opportunity to argue that this standard is incongruent with the post-Ferguson analysis and should be abandoned in favor of the more appropriate de novo standard of review.39 Unfortunately, the Arkansas Court of Appeals opted not to address those arguments, but did state in dicta “these arguments are interesting and may even have merit.”40 If you have the right set of facts for review, we encourage you to make this argument and continue the path to clarify this area of law in our profession.
1. Ferguson v. State, 2016 Ark. 319, at 4–6, 498 S.W.3d 733, 736–37.
25. Reel, 318 Ark. at 569, 886 S.W.2d at 617 (citing to Matthews v. State, 313 Ark. 327, 854 S.W.2d 339 (1993), which discussed disqualification pursuant to Canon 3(C) of the original published Code, and Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994),
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 25 which also discussed disqualification under Canon 3(C)). 26. Reel, 318 Ark. at 570, 886 S.W.2d at 618. 27. Porter v. Ark. Dept. of Health & Human Serv., 374 Ark. 177, 191, 286 S.W.3d 686, 697 (2008). 28. Searcy v. Davenport, 352 Ark. 307, 313, 100 S.W.3d 711, 715 (2003). 29. Smith v. Hudgins, 2014 Ark. App. 150, at 7, 433 S.W.3d 265, 269. 30. Ferguson v. State, 2015 Ark. App. 722, at 4, 479 S.W.3d 25, 27, rev’d 2016 Ark. 319, 498 S.W.3d 733. 31. Id. at 12–13, 479 S.W.3d at 31–2 (Harrison, J., dissenting). 32. Id. at 15, 479 S.W.3d at 33. 33. Ferguson v. State, 2016 Ark. 319, at 8, 498 S.W.3d 733, 738. 34. Id. at 6–7, 498 S.W.3d at 737. 35. Id. at 7, 498 S.W.3d at 737. 36. Id. 37. Id. 38. See Matthews v. State, 313 Ark. 327, 330, 854 S.W.2d 339, 341 (1993). 39. In re Estate of Edens, 2018 Ark. App. 226, at 1–2, 2018 WL 1615195 (2018). 40. Id., 2018 Ark. App. at 11, 2018 WL 1615195, at *11. ■ DO YOU NEED HELP WITH SPANISH SPEAKING CLIENTS? WE ARE HERE TO HELP YOU. Helping the Spanish speaking community since 2009 Criminal Cases DWI/DUI Cases Accident Cases Robert E. Tellez 628 W. Broadway, Suite 102, North Little Rock, Arkansas 72114 tellezlawfirm.com (501) 353-2901 Zoom Mediations 4 hour mediation, $400 per party John Dewey Watson, Mediations Text or Call: (501) johndeweywatson@me.com804-4131www.mediateadr.com Zoom Mediations 4-hour mediation, $400 per party John Dewey Watson, Mediations Text or Call: (501) johndeweywatson@me.com804-4131www.mediateadr.com
ArkBar Annual Award Recipients
Anton L. Janik, Jr., Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, for several years of chairing the Editorial Advisory Board
Brett D. Watson, Attorney at Law, PLLC, Searcy, for work on the Handling Appeals Handbook
Vincent C. Henderson II, Bureau of Legislative Research, Little Rock, for planning the Government Practice Conference Shane E. Khoury, Arkansas Energy and Environment, Little Rock, for planning the Natural Resources Conference
Maya S. Goree, Cross, Gunter, Witherspoon & Galchus, P.C., Little Rock, for work as Elder Law Track Planner for Mid Year
Richard P. Walt, J. David Reynolds Company, Camden, for planning the Natural Resources Conference
Brooke-Augusta Ware, Cordell & Cordell, PLC, Little Rock, for work as Family Law Track Planner for Annual Meeting
Brett D. Watson, Searcy, for contributions to The Arkansas Lawyer magazine Maurice Cathey Award
Kristin L. Pawlik, Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, Fayetteville, for work as Annual Meeting Co-Chair Patrick D. Wilson, Wright Lindsey Jennings, Little Rock, for work as Annual Meeting Co-Chair G. S. Brant Perkins, The Perkins Law Firm, P.A., Jonesboro, for work as Chair of the Finance Committee
Judith Ryan Gray Young Lawyer Service Award
William J. Ogles, Wright Lindsey Jennings, Little Rock, for outstanding contributions to improve the administration of justice and promote the public welfare on behalf of YLS
George M. Rozzell, Miller, Butler, Schneider, Pawlik & Rozzell, PLLC, Fayetteville, for work as Chair of the Legislation Committee
Payton C. Bentley, Clark Law Firm, PLLC, Fayetteville, for his commitment and dedication to the Young Lawyers Section Frank C. Elcan Award
Cathy Underwood, Attorney at Law, Little Rock, for work on the Paralegal Affiliate Membership Program
Payton C. Bentley, Clark Law Firm, PLLC, Fayetteville, for work as Chair of the Young Lawyers Section Alan L. Lane, Odom Law Firm, P.A., Fayetteville, for work on the ABOTA Masters in Trial program
26 The Arkansas Lawyer www.arkbar.com
CLE Awards
David Biscoe Bingham, Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C., Little Rock, for work as Chair of the Jurisprudence and Law Review Committee
2021-2022 Arkansas Bar Association President Bob Estes presented the awards during the 124th Annual Meeting on June 16, 2022, at the Hot Springs Convention Center. Jason B. Hendren, Hall Booth Smith, P.C., Rogers, for work on the Membership Task Force
Adam D. Reid, Gill Ragon Owen, P.A., Little Rock, for work as Tax Law Track Planner for Mid Year
Lillian Dee Davenport, Simmons Bank Private Wealth, Little Rock, for several years of planning the Mid Year Meeting Presidential Awards of Excellence Golden Gavel Awards
Arkansas Bar Foundation and Arkansas Bar Association Joint Awards
Join us next year in Hot Springs! June 14-16, 2023
JUDGE BARBARA HALSEY Jonesboro, in recognition of exceptional competency, efficiency and integrity on the Bench and exemplary service to the administration of justice
Outstanding
JEANServiceDistinguishedAwardTURNERCARTER
Outstanding Local Bar Associations: Pulaski County Bar Association
Sebastian County Bar Association
Frank Jenner,LaPortePulaski County Attorney's Office, Little Rock, for work on the Statute of Limitations Handbook and Wills For Heroes Project Zachary R. Trail, theforLittleLindseyWrightJennings,Rock,workonStatuteof Limitations Handbook and Wills For Heroes Project
President’s Award Presented to Bob Estes
Faye Shepherd, Best General Category for "A Nonlawyer's Perspective on the Unauthorized Practice of Law" published in the Fall 2021 issue of The Arkansas Lawyer Professor Annie Smith, Best Legal Category for "Understanding Human Trafficking Laws and Liability" published in the Summer 2021 issue of The Arkansas Lawyer
Center for Arkansas Legal Services, Little Rock, in recognition of commitment to and participation in equal justice programs, including pro bono efforts through legal services
Outstanding Jurist Award
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 27 Arkansas Bar Foundation Writing Awards
Washington County Bar Association Caroline Kelley, Kelley Law Firm, Rogers, for work as forTreasurer,Secretary/WillsHeroesClinic and Chairing the YLS Annual Meeting Reception
JONATHANAwardLawyer-CitizenQ.WARREN
Young Lawyer Section Awards of Excellence
ArkBar President Joe Kolb presented the President’s Award to Immediate Past President Bob Estes for his service to the association as president for the 2021-2022 bar year. Thank you to Bob Estes for leading ArkBar’s efforts in supporting the rule of law this past bar year as the 124th President of the Association.
View the photos at annualmeeting/arkbar.com/home
Stephens, Inc., Little Rock, given in recognition of outstanding participation in and excellent performance of civic responsibilities and for demonstrating high standards of professional competence and conduct Equal Justice
The Arkansas Bar Foundation and the Arkansas Bar Association selected the following recipients to honor this year because of their outstanding contributions.
By David H. Williams
We should all be fairly proficient at anticipating and appreciating a simple hearsay objection during trial. It usually begins when the witness begins testifying: “Well, Mr. Williams I’m glad you asked me that, because Bill Smith told me he had warned this boy time and time again not to drive so crazy.”
Out-of-Court Statements that Aren't Hearsay
David H.
28 The Arkansas Lawyer www.arkbar.com
Remember, in all cases, the admission of evidence is within the discretion of the judge under Rule 104, and that error on evidentiary rulings is harmless unless a substantial right of the party is affected. (Additionally, we must jump through all the hoops set out in Rule 103 to preserve the record.)
Number 1: Rule 801(a)(1) and (2) address oral or written assertions and nonverbal conduct if it is intended to be an “assertion.”
So, what is an “assertion”?
An assertion is a declaration. A declaration declares facts or asserts facts including state of mind. Example: “I think I’ll go to Dave’s for lunch today” (state of mind). Questions, orders and exclamations are not assertions and, therefore, will usually slide by the hearsay rule. State of mind under Rule 803(3) is an exception to hearsay.
First, what is hearsay? Hearsay is an out-of-court communication that you are seeking to admit into evidence to prove that the content of the communication is true. In order to admit an out-of-court communication, we must be prepared to show (1) that we are not offering it to prove that it is the truth; (2) that the communication is relevant to some contested issue other than the issue of whether the communication is the truth; and (3) we are prepared to lay a foundation to establish the communication as an exception to the hearsay rule.1
EditorialofmemberCommittee;CourtofAssociation;Arkansaspast-presidentH.LawpracticesWilliamslawattheOfficesofDavidWilliams.HeisaoftheTrialLawyersamembertheArkansasSupremeCivilPracticeandaandpastchairtheArkansasLawyerBoard.
A present sense impression? Proof that the bystander can speak the English language? Proof that the bystander is not blind? Is it relevant to any issue in the case other than its Thetruth?four most often encountered out-of-court statements are:
The hearsay rule is born out of the common law’s preference that evidence will be most trustworthy if the person who gave the evidence appears in court and is subject to cross-examination. In this way, the declarant’s memory, sincerity, perception, etc., can be tested. If we want to offer into evidence a bystander statement that the driver of the other car was going “like a bat out of hell” prior to the collision with our client, then we must be prepared to show why the statement is not hearsay. Is it an excited utterance?
Next
We deal with these inadvertent slips of the tongue from witnesses all the time. However, the real problems of hearsay that confront us have to do with the admissibility of critical pieces of evidence that are important to our case and our ability to meet and carry our burden of proof. The purpose of this article is to analyze the most frequently encountered hearsay problems and, hopefully, show you how to deal with them and get our evidence admitted.
1. Statements that are circumstantial evidence of the declarant’s state of mind.5 Say you have a case where you want to prove willful and wanton conduct on the part of the defendant. You have a witness who can testify to overhearing the defendant’s employee make a statement showing malice, hatred or premeditation against your client.
Still, nonassertive communications must meet the test of general relevancy under Rule 403 or the court can exclude them (as well as any other kind of evidence) on the basis of undue prejudice and lack of probative value over inherent danger. The nonassertive communications can come in as nonhearsay to prove circumstantially some issue relative to the case.
Number 2: Communications made out of court but not offered to prove that they are truthful.4
2. Sometimes statements have legal consequences, as in contract or slander and libel cases. The words are relevant not because they are true, but because legal obligations and events occur as a result of those words being spoken. “We accept your offer of $10,000.00;” or “He is a liar and a cheat.”3.Sometimes statements are circumstantial evidence of the recipient’s state of mind, or an explanation of conduct. Most of the time in Arkansas, we see this in criminal cases where hearsay testimony is offered to show why a police officer went to the defendant’s house or the scene of a crime or accident.
One caveat: Unlike civil cases, a prior inconsistent statement a witness “offered in a criminal proceeding” is not admissible substantive evidence unless the prior statement was given under oath and subject to the penalty of perjury. Otherwise, such a prior inconsistent statement can only be considered by the jury in assessing the declarant’s credibility, and you must remember to remind the judge to give a limiting instruction to jurors that they may consider the statement only insofar as it reflects the witness’s credibility. In other words, even if the statement qualifies as a prior inconsistent statement under Rule 613, the statement is not admitted as substantive evidence under Rule 801(d)(1)(i) unless the statement was made under oath at a prior formal proceeding. Rule 801(d)(2) covers admissions by the other party. The admissions of a party opponent are defined as nonhearsay.
On the other hand, where the proponent of the will introduces letters written to the testator at the time he or she made out a will in which the letters discuss various business deals and the like, which one would only write to a sane person, the letters are admissible. This is not hearsay. The letters were not written to assert or affirm the testator’s sanity. They were written because the writers believed the testator to be sane or they would not have written the letters.3
The statement overheard is, “Don’t you dare warn those [plaintiffs] that our tanker is leaking nitric acid into their yards—every one of those worthless bastards will probably sue!” Relevant? You bet. Admissible? Yes— state of mind. Proof for punitive damages.
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 29 question: What are assertive and nonassertive communications? We all use signals and signs, gestures and facial expressions to convey a thought.2 Rule 801(a)(2) calls these signals and signs “nonverbal conduct of a person if it is intended by him as an assertion.”Whatif a communication is made without any intent at the time to “assert” what ultimately becomes an issue at trial? For example: In a will contest where the issue is the deceased’s mental capacity, the proponent may seek to introduce letters which he has gathered from friends of the testator written “To Whom It May Concern” that the testator was not in his right mind during the time that he made out his will leaving his whole estate to his son. Inadmissible. This is hearsay. It is an assertive communication offered to prove the truth of the assertion that the testator was not in his right mind.
Number 3: An out-of-court statement made by a declarant who is available for cross-examination. 801(d)(1) covers prior statements of the witness. This rule is concerned with three types of out-of-court communications: (1) a prior identification to bolster an in-court identification; (2) a prior inconsistent statement to impeach; and (3) a prior consistent statement to rehabilitate.
“The exceptions that have been set out in this article are the ones you are most likely to catch in the heat of battle, the ones you most likely need to be aware of and fall back on when confronted with hearsay problems in the presentation of your case.”
In civil cases such evidence can be used to show that a defendant was put on notice of a defect in a product. Example: “I heard Mr. Smith tell the defendant that the truck was leaking nitric acid.” This is not offered for its truth, that the truck was in fact leaking nitric acid, but to show that the statement was material and therefore is circumstantial evidence of the defendant’s state of mind on a relevant issue, knowledge that someone has claimed a defect or a problem occurring.
30 The Arkansas Lawyer www.arkbar.com Therefore, the admission may be admitted as substantive evidence. This rule allows the plaintiff in a tort action to prove the defendant’s out-of-court statements acknowledging fault and the prosecutor to introduce the defendant’s confession acknowledging guilt. Professor Imwinkelried describes the admission doctrine as a product of the adversary litigation system because opponents can hardly complain that they don’t have an opportunity to cross-examine themselves. The opponent can always take the stand and deny or explain the statement.
James McElhaney said that the following exceptions are among the most common which trial lawyers face:
There are three basic kinds of admissions: (1) personal; (2) adoptive; and (3) vicarious. An adoptive admission is one where the statement is imputed to the party opponent because the party opponent manifests agreement with the statement and, therefore, adopts it. Vicarious admissions are admissions which the opponent adopts because of some legal relationship between the speaker or the declarant and the party opponent.6Foranadoptive admission to be admissible, it must be shown that the accused heard the statement, understood it, and failed to deny it.7 The court must determine whether a reasonable person under the circumstances would naturally have been expected to deny the statement if the statement was untrue. Most vicarious admissions in civil cases are statements made by agents and admitted against the agent’s principal. In order to be admitted under the Arkansas Rules of Evidence, the agent can either be a person authorized by the principal to make a statement concerning the subject, or the statement can concern a matter within the scope of the agency or employment which was made during the existence of that relationship.8 In other words, it is not necessary that an agent be authorized by his or her principal to make the statement.9 It does not follow, however, that one spouse is the agent of the other solely by virtue of the marital relationship.10 In order to determine whether statements made by an agent are nonhearsay in regard to the principal, it is only necessary to make a preliminary determination concerning whether the statements involve a matter within the scope of the agency relationship. Such a decision does not involve a question of fact; rather, it involves a question of law based upon the facts that have been presented.11Thecriminal counterpart of the agentprincipal statement is the coconspirator doctrine. Rule 801(d)(2)(v) defines as nonhearsay “a statement by a coconspirator of a party during the course and in the furtherance of the conspiracy.” In a criminal case, there need not be a conspiracy stated in the defendant’s indictment to make the provisions of this rule of evidence applicable.
The operative element for this exception is that the statement must be made while the declarant was under the stress of excitement caused by the event or condition. The excited utterance differs from a present sense impression in three respects: (1) The excited utterance need only relate to the startling event while a present sense impression must describe or explain an event, not necessarily a startling one; (2) The excited utterance need not occur immediately after the event so long as the declarant was still upset by the event when he or she made the statement; and (3) the excited utterance requires that the declarant witness a startling event; the present sense impression does not.
It is irrelevant whether the State uses the word “conspire” or not in the indictment; a coconspirator’s statements are admissible where the conspiracy is not contained in the indictment, but is proved at the trial through independent evidence.12
3. Rule 803(3) State-of-Mind. Declarations of present state of mind are admissible as hearsay exceptions under Rule 803(3). State-of-mind declarations are never a problem when the declarant’s state of mind is an issue. Admissibility does become a problem when a state-of-mind statement is being used as circumstantial evidence of some other fact. An example of such a statement is, “I think I’ll go to Dave’s for lunch today.” Is this statement admissible to show that the declarant did in fact go to Dave’s for lunch that day? The answer is yes, according to Mutual Life Ins. Co. of N.Y. v. Hillmon.16 Professor McElhaney has described this state of mind as proof which “looks forward” in time.17 Backward-looking state-of-mind statements are generally inadmissible except in will cases to prove that someone wrote or revoked a will, to show its terms, or to identify it. The exact language is as follows: “but not including a statement of memory or belief to prove the fact remembered or believed unless it relates to the execution, revocation, identification,
Number 4. Rule 803—Hearsay Exceptions: Irving Younger said that there are, depending on how particular you want to be, up to 100 recognized exceptions to the hearsay rule.13 The Federal Rules of Evidence list 29 exceptions, which really add up to only 28, because Rule 803(24) and Rule 804(b)(5) are virtually identical. (The Arkansas Rules of Evidence are the same.) On the other hand, the Federal Rules (and Arkansas Rules) make admissions “nonhearsay” as well as admitting prior identifications and consistent and inconsistent statements as nonhearsay, so even that count is off.
1. Rule 803(1) Present Sense Impressions. Present sense impressions are closely related to the excited utterance found in Rule 803(2). A leading case is Houston Oxygen Co. Inc. v. Davis.14 This case stood for the proposition that a driver’s contemporary description to his or her passengers of how an overtaking car was being driven is admissible. However, compare Marx v. State,15 where the Arkansas Supreme Court found that a statement some 27 minutes after a drunk driving accident occurred was inadmissible. This ruling was based on the fact that (1) the trial court has the discretion to admit or exclude evidence and (2) the trial court’s exercise of discretion was sound when the trial court found that the remark was not made under the stress of excitement, but was made simply for purposes which were solely self-serving. Marx also contains a good description of present sense impressions under the Arkansas Rules of Evidence.
2. Rule 803(2) Excited Utterances. At one time lawyers used to justify the admission of this type of evidence as part of the “res gestae.” James McElhaney said that res gestae includes verbal acts, bodily condition, state of mind, excited utterances and present sense impressions. McElhaney recited the way in which Irving Younger used to explain to his students how easy it is to recognize excited utterances. They all start with "MY GOD!"
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9. Missouri Pacific Railroad v. Arkansas Sheriff’s Boys’ Ranch, 280 Ark. 53, 655 S.W.2d 389 (1983) (statement of the agent
admitted in this case was testified to by a witness who overheard the agent say that it was less expensive to settle claims caused by fires rather than to keep the right of ways mowed; admitted for purpose of proving the railroad’s policy).
32 The Arkansas Lawyer www.arkbar.com or terms of the declarant’s will.”18 4. Rule 803(4) – Medical Diagnosis. Rule 803(4) admits statements made for the purpose of medical diagnosis or treatment. The important elements of this rule are (1) that the statements need not be made directly to the doctor and (2) the statements need not be made for treatment. The significance of this rule is that the distinction between treating and nontreating doctors is abolished. Therefore, under this rule, you are not required to call a treating doctor to prove medical history; a nontreating expert willAlso,do.19to be noted for purposes of this article but not discussed in detail are: Rule 803(5) Past Recollection Recorded Rule 803(6) Business Records
16. 145 U.S. 285 (1892). Hillmon has been superseded by Rule 803(3) but is still an influential illustration of how Rule 803(3) works. See United States v. Houlihan, 871 F. Supp. 1495, 1500 (D. Mass. 1994) (“this Court rules that Rule 803(3) codifies Hillmon as written and does not disturb its conclusion or its reasoning”).
United States v. Abascal, 564 F.2d 821 (9th Cir. 1977) (trial court improperly excluded tape-recorded telephone conversations that were offered to show a pattern of verbal behavior on the telephone; the evidence was not hearsay because it was not offered for the truth of the statements);
11. Dixie Ins. Co v. Joe Work Chevrolet, Inc., 298 Ark. 106, 766 S.W.2d 4 (1989).
3. See United States v. Herrera, 600 F.2d 502 (5th Cir. 1979) (trial court committed error by not permitting the defendant to testify to the contents of threatening phone calls defendant claimed to have received; the evidence was not hearsay because the calls were offered to prove merely that the threats were made to support the defendant’s defense of duress);
6. See Ark. R. Evid. 801(d)(2)(i),(ii),(iii) and 7.(iv).
2. For an example of nonverbal conduct meant as an assertion, see Fisher v. State, 290 Ark. 490, 720 S.W.2d 900 (1986).
4. Eward J. Imwinkelried, Evidentiary Foundations § 10.02 (Matthew Bender 11th ed. 2020).
19. See Wallin v. Ins. Co. of North America, 268 Ark. 847, 596 S.W.2d 716 (1980) (social service history of the deceased incident to his admission to a psychiatric hospital was admissible under Rule 803(4) and (6), because it was adequately identified by the Associate Medical Director of the Hospital as being part of the hospital record being made for the purpose of medical diagnosis and treatment); Cash v. State, 301 Ark. 370, 784 S.W.2d 166 (1990) (trial court allowed the prosecutor to introduce into evidence under Rule 803(4) a state hospital report concerning the defendant’s diagnosis as an alcoholic and drug abuser which was being used by the defendant’s expert psychiatric witness on the stand; admissible, not because of Rule 803(4), but because the defendant waived his hearsay objection by using the report via his expert); see also Ross v. Moore, 30 Ark. App. 207, 785 S.W.2d 243 (1990). ■
17. James W. Mcelhaney, Mcelhaney’s Trial Notebook 274 (American Bar Association 4th ed. 2005).
United States v. Parry, 649 F.2d 292 (5th Cir. 1981) (defendant’s statement to his mother that he was working for a narcotics agent held to be admissible because it was not offered for its truth, but to show knowledge of the narcotics agent’s identity);
10. Parrish v. Newton, 298 Ark. 404, 768 S.W.2d 17 (1989).
12. Smithey v. State, 269 Ark. 538, 602 S.W.2d 676 (1980).
18. Ark. R. Evid. 803(3). See Honey v. Hickey, 26 Ark. App. 99, 760 S.W.2d 81 (1988) (admitting testimony of witness concerning intent and state of mind of testators at time wills were executed).
15. 291 Ark. 325, 724 S.W.2d 456 (1987).
5. See Ark. R. Evid. 803(3).
1. Ark. R. Evid. 801, 802, 803 and 804.
13. Irving Younger, Hearsay: A Practical Guide Through the Thicket 44 (Prentice Hall Law & Business 1988). 14. 139 Tex. 1, 161 S.W.2d 474 (1942).
Thomas v. State, 10 Ark. App. 294, 663 S.W.2d 745 (1984) (prosecution of theft by receiving of stolen cigarettes) (The testimony showed that the defendant was present and within four feet of the speaker when the speaker announced that defendant had cigarettes for sale. The defendant failed to object to the statement or otherwise deny that he was attempting to sell the stolen cigarettes. The court held the circumstances presented adequate foundational facts so as to admit the statement as an adoptive admission under 801(d)(2)(i).).
And, finally, Rules 803(24) and Rule 804(b)(5): The “catch all” residual hearsay exceptions. This exception is used sparingly and with caution by the courts. It focuses primarily on the sincerity of the declarant at the time he or she made the statement and secondarily on the need for the evidence. The statement must have equivalent circumstantial guarantees of trustworthiness as other exceptions to the hearsay rule, and may be admitted if the Court determines that (1) the statement is offered as evidence of a material fact; (2) the statement is more probative on the point than any other evidence which the proponent can procure through reasonable efforts; (3) its admission will serve the general purposes of the Rules of Evidence and the interests of justice; and, (4) the offering party provides opposing counsel with prior notice of his or her intent to offer the statement along with the particulars of the statement, including the name and address of the declarant sufficiently in advance to provide the adverse party a fair opportunity to prepare to meet it.
There are other exceptions to the Hearsay Rule such as learned treatises, family pedigree, ancient documents, public records, and the like, but you will usually have sufficient warning in advance of trial to be prepared for these exceptions. The exceptions that have been set out in this article are the ones you are most likely to catch in the heat of battle, the ones you most likely need to be aware of and fall back on when confronted with hearsay problems in the presentation of your case.
Endnotes:
Modern Leasing Inc. v. Falcon Manufacturing, 888 F.2d 59 (8th Cir. 1989) (statements of the representative of the defendant were admissible, not for the truth of the matters asserted by the representative but to demonstrate the issue of apparent vs. actual authority).
8. Ark. R. Evid. 801(d)(2)(iii) and (iv).
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 33 Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C | Jeffrey Thomas, Managing Director MitchellWilliamsLaw.com 425 W. Capitol Ave., Ste. 1800 | Little Rock, AR 72201 THE POWER OF EXPERIENCE. • LegalComprehensiveCounsel • Diverse Industry Sectors Nationally Recognized Lawyers • Deep Experience & Collaboration • Corporate, Litigation, Regulatory & Specialty Practices LITTLE ROCK | ROGERS | JONESBORO | AUSTIN 501.993.5442 11525 Cantrell Rd, Little ExceptionalRock luxury real estate services WestLittleRock.EVRealEstate.com Luxurious, 4 bedroom home in gated community steps away from Chenal Country Club
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DAVIS, STEVEN RAY, of Little Rock, ABN: 76029, in Committee Case No. CPC 2021-035, on a complaint by Nancy Young, by Findings & Order filed May 11, 2022, was SUSPENDED for 60 days, and assessed $50 costs for violations of AR Rules 1.3, 1.4(a)(3), 1.4(a)(4), and 8.1(b).
Attorney Disciplinary Actions
Final actions from April 1, 2022 – June 30, 2022, by the Committee on Professional Conduct. Summaries prepared by the Office of Professional Conduct (OPC). Full text documents are available online through the Judiciary website by checking under “Opinions and Disciplinary Decisions” using the following conduct/opinions.https://www.arcourts.gov/professional-link:[The“Model”Rules of Professional Conduct are for conduct prior to May 1, 2005. The “Arkansas” Rules are in effect from May 1, 2005.]
DAVIS,SUSPENSION:STEVEN
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NEWCOMB, ROBERT ALSTON, of Little Rock, ABN: 73087, in Committee Case No. CPC 2021-036, on a complaint by Douglas Causey, by Findings & Order filed June 23, 2022, was SUSPENDED for four months, ordered to pay $11,000.00 restitution to Douglas Causey, and assessed $50 costs for violations of AR Rules 1.1, 1.3, 1.4(a)(3), and 8.1(b). Newcomb failed to preserve and perfect appeals for his client in two separate DEVINE,REPRIMAND:cases.MARCUS CHRISTIAN, of Little Rock, ABN: 98097, in Committee Case No. CPC-2022-003, on a complaint by Susan Miller, by Findings & Order filed May 11, 2022, was REPRIMANDED, and assessed a fine of $1,000.00 and costs of $50.00, for violations of AR Rules 8.4(a), 8.4(b), 8.4(c) and 8.4(d). Devine forged Miller’s signature and used Miller’s notary stamp knowingly and without permission. ■
RAY, of Little Rock, ABN: 76029, in Committee Case No. CPC 2021-031, on a complaint by Christopher Ruh, by Findings & Order filed May 11, 2022, was SUSPENDED for 60 days, and assessed $50 costs for violations of AR Rules 1.3, 1.4(a)(3), 1.4(a)(4), 1.16(d), 1.19(a)(3), and 8.1(b).
erneSt lawrence ScholarShIp fund
Judge Shannon L. Blatt
In MeMory of Judge John Stroud, Jr. Betty Lou and Frank Hamlin Rosalind and Kirby Mouser Carolyn and Judge John Pittman honorarIa, ScholarShIp contrIButIonS, and other gIftS
36 The Arkansas Lawyer www.arkbar.com 2224 Cottondale Lane, Little Rock, Arkansas 72202 www.arkansasbarfoundation.com • 501.801.5670 Arkansas Bar Foundation
JuStIceS franK and JacK holt ScholarShIp fund Jane and Justice Jack Holt
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Memorials and Honoraria
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The Arkansas Bar Foundation acknowledges with grateful appreciation the receipt of the following memorial, honoraria and scholarship contributions received during the period May 1, 2022, through July 15, 2022.
Edward T. Oglesby, of Little Rock, began his term as President of the Arkansas Bar Foundation Board of Directors for the 2022-23 bar year following the Annual Foundation Meeting. He earned his B.A. Degree from the University of Arkansas at Little Rock and his Juris Doctorate from the UALR Bowen School of Law in Little Rock. Edward has practiced law in Arkansas since 1989 and is also licensed in Louisiana. Edward practices with the Law Offices of Brad Hendricks with an emphasis on insurance contracts, injury claims and construction litigation.
Tom Womack
In MeMory of Stephen engStroM Don A. Eilbott Hyden, Miron & Foster, PLLC
Judy and Kelley Johnson William H. Kennedy III Judge Robin L. Mays Sally and Jim McLarty B. Jeffery Pence Judy and Glenn Vasser Mike Wilson In MeMory of Judge Jay fInch Judge Alan D. Epley
Edward has been a Fellow of the Arkansas Bar Foundation since 2004 and is a Sustaining Fellow. He has served the Foundation on the Board of Directors, as Secretary-Treasurer and Vice-President of the Board and currently as a member of the Trust, Annual Awards and Development Committees. He is a Past President of the Judge Henry Woods Inn of Court, Master of the Bench, and a member of the Alumni Board of the UALR Bowen School of Law. Edward has been an active leader and volunteer for Mt. Saint Mary Academy, serving on the MSM Academy and MSM Foundation Board of Directors, President and Founding Member of the Dad’s Club, Co-President of the Athletic Booster Club, and served as a Mock Trial coach.
Edward and Melanie, his wife of 28 years, are proud parents of two daughters. Kristin graduated as the valedictorian of her LSU Law School class and is employed with Breazeale, Sachese and Wilson, LLP in Baton Rouge, LA., and Katherine is a second year Dean’s Scholar at the University of Alabama School of Law.
Edward T. Oglesby Elected Arkansas Bar Foundation President Bar Foundation
Arkansas
grant applications for law-related projects are due Friday, October 9, 2022. Call 501.801.5670 with questions Arkansas Bar Foundation Thursday, September 22, 2022 5:00 to 6:30 pm Arkansas Bar Center 2224 Cottondale Lane Little Rock Tickets on sale now! $35 per person Fifth Annual Fundraiser RaisingtheBar
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Stephen Engstrom of Little Rock died on May 9, 2022, at the age of 72. Steve was a 1967 graduate and student body president of Hall High School, a 1971 graduate of Davidson College in North Carolina, and a 1974 graduate of the University of Arkansas School of Law. He was the 1974 Articles and Comments Editor of the Law Review and has been an adjunct lecturer at the William H. Bowen School of Law. Steve began his legal career as clerk to Judge Thomas Eisele. He then partnered with Bill Wilson in private practice, and their firm eventually grew to be Wilson, Engstrom, Corum, and Coulter. He was a member of the Arkansas and American Bar Associations, the Arkansas Trial Lawyers Association, the International Society of Barristers, and the American Trial Lawyers Association. Steve served as Chairman for the Inns of Court and was listed in The Best Trial Lawyers in America. He also received the distinction of the 2011 Outstanding Lawyer Award by the Arkansas Bar Association.
Louis B. "Bucky" Jones, Jr., died May 16, 2022, at the age of 75. Bucky graduated from Hendrix College in 1968 and from the University of Arkansas School of Law in 1972. He served as president of the Arkansas Bar Association from 1999-2000, was a founding member of the Northwest Arkansas Community College, and served as a director of Webster University-Fayetteville. Judge Roger Vernon Logan, Jr., of Harrison died April 15, 2022, at the age of 77. He graduated from the University of Arkansas with a Bachelor's degree and a Juris Doctorate. He was an avid historian, and wrote several books and articles on Boone County and Baptist history. He had been an attorney for 54 years, a judicial judge in the 14th Judicial District Court for 26 years and served in the Arkansas House of Representatives in the 1970s. He was a former president of the Arkansas Judicial Council. James Michael Shaw of Fort Smith died July 6, 2022, at the age of 88. He graduated from the University of Arkansas with a B.S.B.A degree, and attended George Washington University in Washington, D.C., and the University of Arkansas School of Law. He received his J.D. degree from Arkansas in 1959. He was active in the practice of law in Fort Smith for over 50 years and was President of the Standard Federal Savings and Loan Association and owner and Chairman of the Board of the Bank of Mansfield. He was a member of the Arkansas and American Bar Associations, Secretary of the Young Lawyers section of the Arkansas Bar Association and Past President of the Sebastian County Bar Association. He was also a member of the lnternational Association of lnsurance Council and Defense Research lnstitute. He practiced before various state and federal trial and appellate courts, the United States Court of Claims in Washington, D.C., the National Labor Relations Board, and the lnterstate Commerce Commission and was admitted to practice before the United States Supreme Court. He served as a Special Justice to the Arkansas Supreme Court and was a State Board Law Examiner for several years. George G. Vaught Jr. of Denver, CO, died on May 10, 2022, at the age of 65. He was a graduate of Hot Springs High School, 1974; Westminster College in Fulton, Missouri, 1978; University of Arkansas Law School, 1981; and passed the Arkansas Bar in 1982. He incorporated his company, Vaught Oil, on January 27, 1995, after moving to Denver, Colorado. Michael E. Wheeler of The Woodlands, Texas, died May 28, 2022, at the age of 72. Michael was a 1972 graduate of Arkansas Tech. After serving four years as a Lieutenant in the U.S. Army, he attended UALR School of Law, graduating in 1979. During his legal career, he served as a deputy prosecuting attorney in Sebastian County, an assistant attorney general for the State of Arkansas, and then for over 30 years as a law professor at South Texas College of Law in Houston, Texas. The information contained herein is provided from the members' obituaries.
in memoriam
Vol. 57 No. 3/Summer 2022 The Arkansas Lawyer 37
Judge Jay T. Finch of Cave Springs died May 30, 2022, at the age of 75. He served in Army intelligence from 1965-1969. He earned a bachelor's degree in Police Science and a master's degree in Public Administration from New Mexico State. He earned his Juris Doctor from Case Western Reserve University School of Law in Cleveland, Ohio. Jay served Benton County as a public defender, deputy prosecutor, and circuit court judge for over 20 years. As a judge, he created the first juvenile drug treatment court in Arkansas. He was a proud supporter of the Northwest Arkansas Children's Shelter and Court Appointed Special Advocates (CASA).
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